Carter v. State, No. 83-1761

CourtCourt of Appeal of Florida (US)
Writing for the CourtSHARP
Citation452 So.2d 953
PartiesLena Mae CARTER, Appellant, v. STATE of Florida, Appellee.
Decision Date07 June 1984
Docket NumberNo. 83-1761

Page 953

452 So.2d 953
Lena Mae CARTER, Appellant,
v.
STATE of Florida, Appellee.
No. 83-1761.
District Court of Appeal of Florida,
Fifth District.
June 7, 1984.
Rehearing Denied July 9, 1984.

Page 954

James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.

SHARP, Judge.

Carter appeals from the revocation of her probation and sentence of eighteen months. The sole issue on appeal is whether the trial judge properly calculated the sentence under the new sentencing guidelines. Fla.R.Crim.P. 3.701. We think the trial court erroneously added points to the sentencing guidelines score sheet for Carter's violation of probation, thereby pushing the sentence beyond the recommended maximum range. However, we think that violation of probation may serve as a basis for imposing a sentence higher than the recommended range, upon appropriate findings by the court. Fla.R.Crim.P. 3.701(d)(6) & (11).

In this case appellant pleaded guilty on April 10, 1981, to resisting an officer with violence, 1 and was placed on probation for three years. On June 24, 1983, the state filed an affidavit of violation of probation:

affiant has reason to believe that probationer has committed offenses against the laws of the State of Florida in that probationer committed the offense of Battery on a Police Officer, Trespass After Warning, Criminal Mischief, and Resisting an Officer with Violence on 5/15/82 in Winter Garden, FL.

Appellant pleaded guilty to the violation of probation charge of resisting an officer with violence, and was sentenced on November 8, 1983.

In calculating Carter's sentence, the court employed the new sentencing guidelines. 2 It added thirty-six points to the score sheet because appellant was on probation for the offense for which she was being sentenced. The court determined that this constituted being under "legal constraint" at the time the offense for which appellant was being sentenced was committed. Fla.R.Crim.P. 3.988(d)(IV). But, Carter was not under any legal constraint at the time she committed the offense for which she was sentenced. See Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984).

However, we think that a violation of probation may serve as a legitimate reason to exceed the presumptive sentence established in the guidelines in the discretion of the trial judge, provided...

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69 practice notes
  • Mischler v. State, No. 84-151
    • United States
    • Florida District Court of Appeals
    • 17 Octubre 1984
    ...v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983) did provide a predicate for the clear and convincing reason standard. 7 Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Bogan v. State, 45......
  • Eldridge v. State, No. 87-1236
    • United States
    • Court of Appeal of Florida (US)
    • 22 Septiembre 1988
    ...sentence in this case and remand for resentencing within the recommended guidelines range. --------------- 1 See Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984) and the long line of cases following Carter. See also Bouyer v. State, 478 So.2d 882 (Fla. 5th DCA 2 See Fla.R.Crim.P. 3.701 d.......
  • Stewart v. State, No. BC-473
    • United States
    • Court of Appeal of Florida (US)
    • 7 Enero 1986
    ...1st DCA 1984); Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). Now, however, Florida Rule of Criminal Procedure 3.701(d)(14) contemplates the presumptive sentence to be imposed in a s......
  • Peters v. State, No. 71609
    • United States
    • United States State Supreme Court of Florida
    • 1 Septiembre 1988
    ...on other grounds, State v. Whitfield, 487 So.2d 1045 (Fla.1986); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA Page 124 Thus, there was no ex post facto violation as Peters was not penalized to a greater extent by use of rule 3.701(d)(14) t......
  • Request a trial to view additional results
69 cases
  • Mischler v. State, No. 84-151
    • United States
    • Florida District Court of Appeals
    • 17 Octubre 1984
    ...v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983) did provide a predicate for the clear and convincing reason standard. 7 Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Bogan v. State, 45......
  • Eldridge v. State, No. 87-1236
    • United States
    • Court of Appeal of Florida (US)
    • 22 Septiembre 1988
    ...sentence in this case and remand for resentencing within the recommended guidelines range. --------------- 1 See Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984) and the long line of cases following Carter. See also Bouyer v. State, 478 So.2d 882 (Fla. 5th DCA 2 See Fla.R.Crim.P. 3.701 d.......
  • Stewart v. State, No. BC-473
    • United States
    • Court of Appeal of Florida (US)
    • 7 Enero 1986
    ...1st DCA 1984); Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). Now, however, Florida Rule of Criminal Procedure 3.701(d)(14) contemplates the presumptive sentence to be imposed in a s......
  • Peters v. State, No. 71609
    • United States
    • United States State Supreme Court of Florida
    • 1 Septiembre 1988
    ...on other grounds, State v. Whitfield, 487 So.2d 1045 (Fla.1986); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA Page 124 Thus, there was no ex post facto violation as Peters was not penalized to a greater extent by use of rule 3.701(d)(14) t......
  • Request a trial to view additional results

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