Carlisle v. State, BG-376

• Citation: 485 So.2d 26,11 Fla. L. Weekly 672
• Decision Date: 18 March 1986
• Docket Number: No. BG-376,BG-376
• Parties: 11 Fla. L. Weekly 672 Reginald Leon CARLISLE, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 26

485 So.2d 26

11 Fla. L. Weekly 672

Reginald Leon CARLISLE, Appellant, v. STATE of Florida, Appellee.

No. BG-376.

District Court of Appeal of Florida,

First District.

March 18, 1986.

Michael E. Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

SHIVERS, Judge.

This is an appeal of the trial court's departure from the sentencing guidelines recommended sentence. We reverse and remand for resentencing.

Appellant/defendant was charged in 1983 with sale of cannabis and sale of cocaine. After entering a plea of guilty to the charges, he was placed on probation for a term of three years. Less than one year later, an affidavit was filed alleging that appellant had violated his probation by selling marijuana and cocaine. After conducting a hearing on the matter, appellant was found to be in violation and his probation was revoked. The sentencing guidelines scoresheet, prepared on the basis of the two 1983 charges, recommended a sentence of any non-state prison sanction. Despite that recommendation, the trial court departed and imposed concurrent five-year sentences for each count. The departure was based solely on the fact that appellant had violated his probation.

Appellant now argues that the trial court erred in using his violation of probation as a reason for departure from the guidelines. We agree. Rule 3.701(d)(14), Fla.R.Crim.P., which became effective on July 1, 1984, provides as follows:

Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.

Prior to the adoption of subsection (d)(14), revocation of probation constituted a clear and convincing reason for departure from the guidelines. Harris v. State, 465 So.2d 545 (Fla. 1st DCA 1985); Randolph v. State, 458 So.2d 64 (Fla. 1st DCA 1984). Since the rule now provides that a sentence imposed after revocation of probation may be increased to the next higher cell, this court has held that any departure past the next higher cell must be supported by a clear and convincing reason other than solely the violation of probation. Stewart v. State, 480 So.2d 1387, (Fla. 1st DCA 1986); Ludmin v. State, ...