Burkhalter v. State
| Decision Date | 04 April 1991 |
| Docket Number | No. 90-85,90-85 |
| Citation | 16 Fla. L. Weekly 922,578 So.2d 345 |
| Parties | James Donald BURKHALTER, Appellant, v. STATE of Florida, Appellee. 578 So.2d 345, 16 Fla. L. Week. 922 |
| Court | Florida District Court of Appeals |
Barbara Linthicum, Public Defender, and David P. Gauldin, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Cynthia Shaw, Asst. Atty. Gen., Tallahassee, for appellee.
James Burkhalter appeals his concurrent sentences of 5 years' incarceration upon the adjudication of his guilt of aggravated battery with a deadly weapon and aggravated assault pursuant to a finding he violated the conditions of his community control. Because the trial court erred in adding points for legal constraint to Burkhalter's original sentencing guidelines score, we vacate the sentence and remand for resentencing.
In June 1989, Burkhalter pleaded no contest to aggravated battery with a deadly weapon in case number 89-1005, and to aggravated assault in case number 89-972. The consolidated scoresheet prepared for the sentencing hearing did not include any points for legal constraint and reflected a guidelines sentencing range of community control or 12-30 months' incarceration. The court withheld adjudication of guilt and placed Burkhalter on 1 year's community control followed by 5 years' probation in each case. In November 1989, Burkhalter pleaded no contest to allegations that he had violated the conditions of his community control in both cases. A new scoresheet was prepared that included an additional 36 points for legal constraint. While the record does not contain any explanation for including these points, we must assume it was based on his being on community control under the original sentence. The guidelines range reflected on the revised scoresheet was 3 1/2 to 4 1/2 years. The trial court adjudicated Burkhalter guilty of the original offenses in both cases and imposed concurrent sentences of 5 years' incarceration.
These judgments adjudicate Burkhalter guilty of the originally charged offenses; he was not adjudicated guilty of any additional offenses allegedly committed during his community control. When a defendant is being sentenced upon a violation of probation or community control for the original offenses, points may be added for legal constraint only if the defendant was under legal constraint at the time he committed the original offense; such points cannot be added for...
To continue reading
Request your trial
-
Martinez v. State
...revoked. See Williams v. State, 678 So.2d 4 (Fla. 4th DCA 1996); Taylor v. State, 485 So.2d 900 (Fla. 4th DCA 1986); Burkhalter v. State, 578 So.2d 345 (Fla. 1st DCA 1991). As this court explained in Taylor, "When a defendant is being sentenced in a probation revocation hearing only for the......
-
Deparvine v. State, 92-200
...1/2 to 5- 1/2 years, respectively. Deparvine notes that his failure to object below does not bar the issue on appeal, Burkhalter v. State, 578 So.2d 345 (Fla. 1st DCA 1991), and that the error is not harmless, in that the corrected total does not correspond to the same guidelines cell. See ......
-
Tillman v. State
...added if the appellant is under legal constraint at the time he commits the offense for which he is being sentenced. Burkhalter v. State, 578 So.2d 345 (Fla. 1st DCA 1991). The appellant was not under legal constraint at the time of the original offenses of robbery and aggravated assault, a......
-
Jeter v. State
...be added merely because the defendant was on community control or probation when he committed the violation. Burkhalter v. State, 578 So.2d 345, 346 (Fla. 1st DCA 1991). In the instant case, the four counts of battery on a law enforcement officer were scored as primary offense at conviction......