Barr v. State, s. 84-1742
| Decision Date | 23 August 1985 |
| Docket Number | Nos. 84-1742,84-1743,s. 84-1742 |
| Citation | 10 Fla. L. Weekly 2017,474 So.2d 417 |
| Parties | 10 Fla. L. Weekly 2017 Michael Edwin BARR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
The appellant, Michael Edwin Barr, pleaded guilty to burglary and grand theft. He was placed on probation. Thereafter, he again committed acts of burglary and grand theft. After pleading guilty to the four offenses, he was adjudicated guilty, probation was revoked and a three year prison sentence was imposed for grand theft. He received probation for each of the other three convictions. All terms, including the prison term, were to run concurrently.
Although the appellant's appointed counsel requested permission to withdraw from this matter pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), she did submit that a sentence in excess of the guidelines might arguably provide grounds for reversal. Our assessment of the record in this matter requires resentencing by the trial court.
At his sentencing hearing, the appellant affirmatively selected through his attorney to be sentenced pursuant to the guidelines. Subsequently, he objected to the sentences which were imposed. The following colloquy involving the trial court and the appellant's trial counsel suggests the possibility that there was a departure from the presumptive sentence:
We find a sufficient degree of uncertainty in the foregoing colloquy to warrant the belief that the trial court was not free of doubt as to the appellant's presumptive sentence. Cf. Davis v. State, 461 So.2d 1361 (Fla. 2d DCA 1985). No scoresheet is found in the record and it appears from the transcript of the sentencing hearing that the lower court did not consider a scoresheet before sentencing the defendant. We are unable to determine whether the appellant received a guidelines or a statutory sentence. If departure did occur, the trial court should have determined the presumptive sentence before departing from the guidelines, Doby v. State, 461 So.2d 1360, (Fla. 2d DCA 1984), Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984), ...
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Gardner v. State, 92-1865
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...error to impose probation and incarceration concurrently. E.g., Nobles v. State, 605 So.2d 996 (Fla. 2d DCA 1992); Barr v. State, 474 So.2d 417 (Fla. 2d DCA 1985); Roy v. State, 207 So.2d 52 (Fla. 2d DCA 1967), cert. dismissed, 211 So.2d 554 (Fla.1968). The rationale in these cases stems fr......