ROY L. BUSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roy L. Bush appealed the revocation of his probation for possessing pornographic materials, a violation of a special condition. The court affirmed the probation revocation but reversed and remanded the sentence, finding the trial court improperly applied the 1995 sentencing guidelines instead of the 1994 guidelines and based the departure sentence on an impermissible factor.
The court held that: (1) the trial court did not abuse its discretion in revoking probation because sufficient facts supported an inference of Bush's knowledge of the materials' presence; (2) Bush is entitled to be resentenced under the 1994 sentencing guidelines; (3) the trial court reversibly erred by basing the departure sentence on factors related to the probation violation; and (4) the victim injury points issue is moot pending resentencing.
[1] A trial court does not abuse its discretion in revoking probation when the record contains sufficient facts from which knowledge of contraband's presence can be inferred.
[2] A defendant is entitled to be sentenced under prior sentencing guidelines when the State concedes the applicability of those guidelines and the prior case law supports su…
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“the record contains sufficient facts from which the trial court could have inferred Bush's knowledge of the materials' presence”
Establishes the standard for affirming probation revocation based on possession knowledge
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Join FLexlaw to unlock all legal intelligenceBush was originally convicted of committing a lewd and lascivious act on a child and placed on probation with a condition prohibiting possession of po…
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BROWNING, J.
Roy L. Bush seeks review of the judgment revoking his probation, and the resulting sentence. He alleges that the State did not demonstrate his violation to be willful and substantial, that he should have been sentenced under the 1994 sentencing guidelines rather than the 1995 guidelines, that the trial court erred in basing the departure sentence on the facts of the violation, and that he should not have been assessed victim injury points for sexual penetration. For the reasons stated below, we affirm the revocation, but reverse the sentence and remand for re-sentencing.
Bush was originally convicted of committing a lewd and lascivious act on a child and placed on probation; one of the conditions of his probation was that he not possess pornographic materials. Without further discussion, we hold that the trial court did not abuse its discretion in revoking Appellant’s probation because the record contains sufficient facts from which the trial court could have inferred Bush’s knowledge of the materials’ presence. Cf. Chicone v. State, 684 So. 2d 736, 740-41 (Fla.1996) (holding that possession as a criminal offense includes knowledge of the contraband).
However, we agree with Bush (and the State concedes) that, under Heggs v. State, 759 So. 2d 620 (Fla.2000), Appellant is entitled to be resentenced under the 1994 sentencing guidelines. See Richardson v. State, 829 So. 2d 364 (Fla. 1st DCA 2002). We also agree with Bush that the trial court’s stated basis for the departure sentence, that “the violation involves obscene or pornographic materials which was a special condition of your probation,” is impermissible because factors related to a probation violation cannot be used to support a departure sentence; accordingly, the trial court reversibly erred by basing his departure sentence on such factor. See Lambert v. State, 545 So. 2d 838, 842 (Fla.1989), cited in Vann v. State, 801 So. 2d 326, 326 (Fla. 1st DCA 2001).
The issue concerning victim injury points is moot in light of the need for resentencing.
AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.
WOLF and WEBSTER, JJ„ concur.
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Bush v. State (Fla. 1st DCA 2007)…PER CURIAM. In this direct criminal appeal, the appellant challenges the sentence imposed upon resentencing following our decision in Bush v. State, 929 So. 2d 685 (Fla. 1st DCA 2006), by which we reversed the appellant’s original sentence and remanded the case to the trial court for resentencing [*549] under the 1994 sentencing guidelines. Because the upward departure sentence imposed upon resentencing was im…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Chicone v. State, 684 So. 2d 736 (Fla. 1996)
- Richardson v. State, 829 So. 2d 364 (Fla. 1st DCA 2002)
- Vann v. State, 801 So. 2d 326 (Fla. 1st DCA 2001)