WILLIAM H. JOHNSON, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Johnson appeals the revocation of his probation and an upward departure sentence imposed by the trial court. The court affirmed the probation revocation but reversed the upward departure sentence because it was based on conduct unrelated to the probation violation and not yet resulting in criminal conviction.
The trial court did not abuse its discretion in revoking probation, but the upward departure sentence was improper because it was based on conduct unrelated to the probation violation, not charged in the violation documentation, and involving conduct not yet resulting in criminal conviction.
[1] A trial court does not abuse its discretion in revoking probation when the probationer has violated its terms.
[2] A trial court may not impose an upward departure sentence based on conduct unrelated to the probation violation, not charged in the violation documentation, and which has…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed or placing the probationer or offender on probation or into community control.”
Establishes the court's sentencing authority upon probation revocation under the applicable statute
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was originally placed on probation for crimes committed in 1997 under pre-Criminal Punishment Code sentencing guidelines. Upon revocation of p…
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MONACO, J.
William H. Johnson, III, appeals the revocation of his probation and the upward departure sentence imposed by the trial court. Although we find no abuse of discretion in the revocation of Mr. Johnson’s probation, we agree that an upward departure sentence was improperly imposed.
Mr. Johnson was originally placed on probation for crimes committed in 1997, and was subject to the sentencing guidelines in place before the enactment of the Criminal Punishment Code.1 Section 948.06(1), Florida Statutes (1997) states that if a charge is not admitted by the probationer or offender, and if the violation of probation is not dismissed, the court as soon as possible shall give the probationer or offender an opportunity to be fully heard. The statute continues:
After such hearing, the court may revoke, modify, or continue the probation or community control or place the pro bationer into community control. If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed or placing the probationer or offender on probation or into community control.
(Emphasis added).
Thus, the trial court could have sentenced Johnson to any sanction which it might have originally imposed prior to placing him on probation. See Crutchley v. State, 705 So. 2d 966 (Fla. 5th DCA 1998). It appears from the record that Mr. Johnson scored a maximum of 35.75 months incarceration, unless there was an upward departure.
The trial judge chose to upwardly depart and sentenced Mr. Johnson to five years in prison. The departure, however, was based on conduct of the appellant that was not related to the probation violation, was not charged in the violation documentation, and involved conduct which could have, but which had not yet resulted in a criminal conviction. An upward departure under these circumstances is improper. See State v. Varner, 616 So. 2d 988 (Fla.1993).
AFFIRMED in part, REVERSED in part. Remanded for resentencing in conformity with section 948.06(1), Florida Statutes (1997).
SAWAYA, C.J., and GRIFFIN, J., concur. . Ch. 97-194, section 1, Laws of Fla., repealed sections 921.001, 921.0011, 921.0012, 921.0013. 921.0014. 921.0015. 921.0016. and 921.005, Florida Statutes (1997), effective October 1, 1998.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shields v. State, 296 So. 3d 967 (Fla. 2d DCA 2020)…la. 2d DCA 1996) ("Because none of the justifications [for departure] existed at the time of the initial sentencing for the original offense, they are invalid." (citing Williams v. State, 581 So. 2d 144, 146 (Fla. 1991))); see also Johnson v. State, 864 So. 2d 1256, 1257 (Fla. 5th DCA 2004). That is likely a problem in this case because the trial court expressly justified its upward departure in part based upon the conduct of Mr. Shields giving rise to the violation of his probation. Mr. Shields did not raise…
Authorities Cited
- State v. Paris D. Varner, 616 So. 2d 988 (Fla. 1993)
- Crutchley v. State, 705 So. 2d 966 (Fla. 5th DCA 1998)