Denegal v. State
| Decision Date | 07 June 1990 |
| Docket Number | No. 89-987,89-987 |
| Citation | 562 So.2d 828 |
| Court | Florida District Court of Appeals |
| Parties | 15 Fla. L. Weekly D1542 Levi DENEGAL, Jr., Appellant, v. STATE of Florida, Appellee. |
James B. Gibson, Public Defender and Kathryn Rollinson Radtke, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Fleming Lee, Asst. Atty. Gen., Daytona Beach, for appellee.
Denegal pled guilty to grand theft and was placed on 3 years' probation. After violating his probation, Denegal was sentenced to 2 years' community control, based upon a guideline recommendation of 12 to 30 months in prison or community control. This recommendation reflected the one cell bump-up permitted after a violation of probation. Fla.R.Crim.P. 3.701(d)(14). Denegal then violated his community control and was sentenced to 3 1/2 years in the Department of Corrections. This sentence represented a one cell increase from the community control guideline cell and a two cell increase from the presumptive guideline sentence for the original offense of grand theft. Denegal contends that this two cell departure from the recommended guideline sentence for the original conviction of grand theft is error. We agree and reverse.
Rule 3.701(d)(14), Florida Rules of Criminal Procedure provides:
14. Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation or community control 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. 1
The issue thus presented is whether the sentencing guidelines permit second or successive one cell increases or whether the court must use the original offense range as its starting point when applying the permitted one cell increase. The Fourth District addressed this question in Torres v. State, 517 So.2d 796 (Fla. 4th DCA 1988). Our sister court observed that Rule 3.701(d)(14) clearly requires that "sentences imposed after revocation of probation or community control must be in accordance with the guidelines," and held
it was error for the trial court to use the violation of probation range rather than the original offense range when determining appellant's [guideline] sentence.
Id. at 798. Similar reasoning was used in Hosmer v. State, 523 So.2d 184 (Fla. 1st DCA 1988) (...
To continue reading
Request your trial
-
Sellers v. State, 90-2367
...(Fla.1989); True v. State, 564 So.2d 1104 (Fla. 4th DCA 1990); Washington v. State, 564 So.2d 168 (Fla. 5th DCA 1990); Denegal v. State, 562 So.2d 828 (Fla. 5th DCA 1990); Hosmer v. State, 523 So.2d 184 (Fla. 1st DCA 1988); Lockett v. State, 516 So.2d 46, 47 (Fla. 4th DCA 1987). We reject t......
-
Peeples v. State, 90-411
...12-30 months incarceration. The guidelines do not permit a two-cell increase upon a second violation of probation. See Denegal v. State, 562 So.2d 828 (Fla. 5th DCA 1990); Niehenke v. State, 561 So.2d 1218 (Fla. 5th DCA 1990). Appellant has already completed the maximum incarceration availa......