Boylan v. State, 84-2697
| Decision Date | 14 May 1986 |
| Docket Number | No. 84-2697,84-2697 |
| Parties | 11 Fla. L. Weekly 1138 Thomas BOYLAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert S. Jaegers, Asst. Atty. Gen., West Palm Beach, for appellee.
We affirm appellant's conviction and sentence and reject appellant's contention that his sentence violated a plea agreement with the state. We also find no record support for appellant's contention that the trial court granted a probation officer the authority to determine the amount and method of payment of restitution. Rather, the record reflects that a further hearing would be held on the issue.
The trial court imposed a sentence of thirty months' imprisonment followed by ten years' probation. The appellant's recommended guideline sentencing range called for community control or twelve to thirty months' imprisonment. This court requested the parties to brief the issue of whether this sentence represented a departure from the guidelines. We conclude that it did not.
In a recent opinion, the Second District interpreted Florida Rule of Criminal Procedure 3.701 to permit a trial court to impose a non-incarcerative sanction which, combined with a prison term, brings the sentence outside the guideline range. Francis v. State, 487 So.2d 348 (Fla. 2d DCA 1986). 1 The court relied on the unambiguous language of the committee note to Rule 3.701(d)(12), which provides:
The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph (11) are complied with.
If a split sentence is imposed (i.e., a combination of state prison and probation supervision) the incarcerative portion imposed shall not be less than the minimum of the guideline range nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law.
(Emphasis supplied.) It appears that the committee fully understood and intended the implications of this language, since it amended this note from its original version, which had the opposite effect:
The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.
If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range.
In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 852 (Fla.1983); see also Shively v. State, 474 So.2d 352, 354 n. 1 (Fla. 5th DCA 1985).
In Francis, the court had to decide whether community control should be viewed as incarceration or probation for the purposes of the rule. Holding that community control was more like probation and hence could be added on to a prison sentence to bring the total sanction outside the guidelines, the court took the view that the extent of community control is not within the subjects regulated by the guidelines. In support, the court cited Rule 3.701(d)(13), which reads in part that when "community control is imposed, it shall not exceed the term provided by general law." 487 So.2d at 349. 2
There is no parallel provision to (d)(13) pertaining to probation. However, it is safe to assume that if the court was correct that community control is not a subject regulated by the guidelines, the same is true of...
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Cain v. State, BP-75
...a split sentence is not a departure sentence. See Committee Note to Florida Rule of Criminal Procedure 3.701(d)(12); Boylan v. State, 489 So.2d 110 (Fla. 4th DCA 1986); Francis v. State, 487 So.2d 348 (Fla. 2d DCA 1986), rev. den. 492 So.2d 1332 (Fla.1986); Bell v. State, 479 So.2d 309 (Fla......
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Putt v. State, 87-1167
...application of the rule, the trial judge was not required to articulate reasons for the sentence imposed. Boylan v. State, 489 So.2d 110 (Fla. 4th DCA 1986). Finally, Putt's contention that this court's holding in State v. Malone, 489 So.2d 213, 214 (Fla. 3d DCA 1986) supports his case is e......
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Mitchell v. State, 88-3445
...invalidated the newly stated reasons for departure. We now affirm the trial judge's right to impose a split sentence. Boylan v. State, 489 So.2d 110 (Fla. 4th DCA 1986). We now reverse the conviction for possession of a firearm while engaged in a criminal offense. The firearm was the same r......