Addison v. State, 83-2187

Citation452 So.2d 955
Decision Date06 July 1984
Docket NumberNo. 83-2187,83-2187
PartiesGlynn ADDISON, Jr., Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

Defendant Glynn Addison, Jr., challenges a five-year prison sentence imposed outside the recommended sentencing guidelines. We affirm.

Defendant was placed on five years probation on May 19, 1980, for the offense of grand theft. On August 4, 1983, the state filed an affidavit alleging that defendant violated his probation by:

Violation of Condition (5) of the Probation Order, in that, on August 1, 1983 probationer did possess marijuana, less than five grams, as evidenced by his arrest for Possession of a Controlled Substance--Cannabis (misdemeanant) and further attested to by Deputy William Andreu of the Charlotte County Sheriff's Office.

Violation of Condition (9) of the Probation Order, in that, on August 1, 1983 probationer did consume alcohol as evidenced by his arrest for Driving While Under the Influence and Driving With Unlawful Alcohol Blood Level and further attested to by Deputy William Andreu of the Charlotte County Sheriff's Office.

Defendant appeared before the trial judge with his counsel on October 10, 1983, and entered a plea of nolo contendere to these alleged violations. He elected to be sentenced under the new sentencing guidelines, pursuant to section 921.001(4)(a), Florida Statutes (1983). See also In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

The court and counsel explained to defendant that although the scoresheet prepared under the sentencing guidelines indicated the recommended sentence would be any non-state prison sanction, that the trial court had the option of going outside those guidelines in imposing a sentence. The trial judge recalled that when he placed the defendant on probation, he emphasized the importance of defendant abstaining from the use of alcoholic beverages. He further mentioned his admonition to defendant at that time that violation of these conditions of probation would result in a prison sentence. The trial judge then accepted defendant's plea and sentenced him to five years imprisonment with credit for time served. This timely appeal followed. We have jurisdiction pursuant to section 924.06(1)(e), Florida Statutes (1983), and Florida Rule of Appellate Procedure 9.140(b).

Defendant first contends that his violation of probation relates to the instant offense for which he was sentenced. He argues that Florida Rule of Criminal Procedure 3.701(d)(11) precludes any factors relating to the instant offense from being considered as reasons for deviating from the guidelines. 1 We think defendant's basic premise is incorrect. To begin with, the subsequent conduct involved in his probation violations, i.e., possession of marijuana and driving while under the influence of alcoholic beverages, was not related to the offense of grand theft for which he was sentenced. Furthermore, even assuming that such probation violations did relate to the instant offense, nothing in rule 3.701 says that matters excluded for purposes of guidelines computation cannot be considered as reasons for departure from the sentencing guidelines. See Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984).

Defendant further contends that the court erred in sentencing him outside the guidelines, because there was no clear and convincing reason to warrant such action. Again, we disagree. We think that violation of a substantive condition of probation can be a basis for a trial court to exercise its discretion in sentencing outside the area of the guidelines. See Carter v....

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41 cases
  • Mischler v. State
    • United States
    • Florida District Court of Appeals
    • October 17, 1984
    ...5th DCA 1984); Maged v. State, 455 So.2d 1153 (Fla. 5th DCA 1984); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).8 Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984); Smith v. State, 45......
  • State v. Mobley, 6-337571
    • United States
    • Connecticut Superior Court
    • August 28, 1993
    ...189 (Wyo.1990); holding that probation is a sentence, with State v. Muldoon, 159 Ariz. 295, 298, 767 P.2d 16 (1988); Addison v. State, 452 So.2d 955, 956 (Fla.App.1984); People v. Boucher, 10 Ill.App.3d 750, 751, 295 N.E.2d 334 (1973); State v. Generoso, 156 N.J.Super. 540, 545, 384 A.2d 18......
  • Tuthill v. State, 86-847
    • United States
    • Florida District Court of Appeals
    • September 15, 1987
    ...476 So.2d at 160; Floyd v. State, 495 So.2d 872 (Fla. 5th DCA 1986); State v. Rice, 464 So.2d 684 (Fla. 5th DCA 1985); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1 See also Spivey v. State, 481 So.2d 100 (Fla. 3d DCA 1986), where this court held that a defendant's violation of probation b......
  • Beauvais v. State
    • United States
    • Florida District Court of Appeals
    • October 1, 1985
    ...1st DCA 1984); Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984). Under the facts of this case, the trial court's reason for departing from the guidelines meets the clear and convincing sta......
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