Bell v. State, No. 84-551

CourtFlorida District Court of Appeals
Writing for the CourtPER CURIAM
Citation459 So.2d 478
Decision Date29 November 1984
Docket NumberNo. 84-551
PartiesRoy Charles BELL, Appellant, v. STATE of Florida, Appellee.

Page 478

459 So.2d 478
Roy Charles BELL, Appellant,
v.
STATE of Florida, Appellee.
No. 84-551.
District Court of Appeal of Florida,
Fifth District.
Nov. 29, 1984.

James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

This is an appeal from a guideline sentence. Appellant was sentenced after a probation violation to a thirty month prison term. That sentence was within the cell next above that which should have been given. Because appellant violated his probation the judge was justified in sentencing him to the greater punishment. Atkinson v. State, 456 So.2d 568 (Fla. 5th DCA 1984); Maged v. State, 455 So.2d 1153 (Fla. 5th DCA 1984); Davis v. State, 455 So.2d 602 (Fla. 5th DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

The record is sufficient to support the departure from the lower recommended sentence because the trial judge stated the reason on the record. Klapp v. State, 456 So.2d 970 (Fla. 2d DCA 1984); Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984).

The principal point appellant raises is that the trial judge erred in relying upon a memorandum of the Sentencing Guidelines Commission which recommended that judges be permitted to sentence a probation violator to punishment within the next higher cell of the guidelines without giving any reason for the greater sentence. Appellant says the recommendation had no effect in law because it had not been adopted by the supreme court or the legislature. While appellant is correct the recommendation had not been adopted, we cannot agree the judge erred. This court has held that a violation of probation constitutes sufficient grounds to depart from the guidelines. If we were to rule otherwise here we would be in conflict with a prior decision of this court.

AFFIRMED.

DAUKSCH, ORFINGER and COWART, JJ., concur.

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3 practice notes
  • Oden v. State, Nos. AY-68
    • United States
    • Florida District Court of Appeals
    • 19 Diciembre 1984
    ...from the guidelines, we certify conflict, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi), with Bell v. State, 459 So.2d 478 (Fla. 5th DCA 1984); Webster v. State, 461 So.2d 965 (Fla. 2d DCA 1984); Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Fleming v. State, 456 So......
  • Browning v. State, No. 84-967
    • United States
    • Court of Appeal of Florida (US)
    • 21 Marzo 1985
    ...of the reasons for departing from the sentencing guidelines is sufficient to meet the requirements of rule 3.701(d)(11). Bell v. State, 459 So.2d 478 (Fla. 5th DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984). And, in Neely ......
  • Davis v. State, No. 84-711
    • United States
    • Florida District Court of Appeals
    • 13 Diciembre 1984
    ...Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee. PER CURIAM. AFFIRMED on the authority of Bell v. State, 459 So.2d 478 (Fla. 5th DCA DAUKSCH, ORFINGER and COWART, JJ., concur. ...
3 cases
  • Oden v. State, Nos. AY-68
    • United States
    • Florida District Court of Appeals
    • 19 Diciembre 1984
    ...from the guidelines, we certify conflict, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi), with Bell v. State, 459 So.2d 478 (Fla. 5th DCA 1984); Webster v. State, 461 So.2d 965 (Fla. 2d DCA 1984); Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Fleming v. State, 456 So......
  • Browning v. State, No. 84-967
    • United States
    • Court of Appeal of Florida (US)
    • 21 Marzo 1985
    ...of the reasons for departing from the sentencing guidelines is sufficient to meet the requirements of rule 3.701(d)(11). Bell v. State, 459 So.2d 478 (Fla. 5th DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984). And, in Neely ......
  • Davis v. State, No. 84-711
    • United States
    • Florida District Court of Appeals
    • 13 Diciembre 1984
    ...Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee. PER CURIAM. AFFIRMED on the authority of Bell v. State, 459 So.2d 478 (Fla. 5th DCA DAUKSCH, ORFINGER and COWART, JJ., concur. ...

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