DeRicciulli v. State, 90-03006
| Decision Date | 17 January 1992 |
| Docket Number | No. 90-03006,90-03006 |
| Citation | 592 So.2d 1197 |
| Parties | 17 Fla. L. Weekly D266 Rebecca DeRICCIULLI, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender and Cecilia A. Traina, Assistant Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Sue R. Henderson, Asst. Atty. Gen., Tampa, for appellee.
The defendant appeals her judgment and sentence entered after a revocation of probation. We affirm the judgment, but reverse the sentence.
The state alleged that the defendant failed to comply with several conditions of her probation during April and May of 1990. Following an evidentiary hearing, the trial court properly determined that the conditions of probation had been violated. This was the defendant's first violation of probation for this offense. Without any bump, her scoresheet recommended and permitted any nonstate prison sanction. The court correctly determined that the one-cell bump-up for an offense occurring after July 1, 1988, allowed it to impose a sentence within the permitted range of the next higher cell. Jackson v. State, 556 So.2d 513 (Fla. 2d DCA 1990). When it imposed the sentence, however, the trial court mistakenly believed that the permitted range of the next higher cell extended to 4 1/2 years when it actually extended to only 3 1/2 years.
The trial court sentenced the defendant to 4 1/2 years' incarceration, but suspended this sentence and imposed 1 year of community control followed by 3 1/2 years' probation. Thus, the sentence the defendant is actually serving is a sentence within the guidelines, although the incarceration is a departure. The defendant can only receive the 4 1/2-year sentence if she again violates the terms of community control or probation.
The state argues that this sentencing method is acceptable in light of our decisions in Williams v. State, 559 So.2d 680 (Fla. 2d DCA 1990) (en banc), review granted, 75,919 , and Williams v. State, 568 So.2d 1276 (Fla. 2d DCA 1990), review granted, No. 76,016 . Its argument seems to have two prongs. First, it reasons that the defendant has already committed a "second violation" of probation. Although it is true that the defendant violated several conditions of her probation, this was only her first adjudication on a violation of probation. The rule in Williams is limited to cases involving two or more successive adjudications.
Second, the state suggests that the 4 1/2-year sentence could eventually be imposed under Williams if the defendant violated her current terms of community control or probation. In other words, the 4 1/2-year sentence will become operative only if the defendant in fact has two successive adjudications...
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