Harms v. State, AW-238

• Decision Date: 06 August 1984
• Docket Number: No. AW-238,AW-238
• Parties: Herman Henry HARMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 689

454 So.2d 689

Herman Henry HARMS, Appellant, v. STATE of Florida, Appellee.

No. AW-238.

District Court of Appeal of Florida,

First District.

Aug. 6, 1984.

Rehearing Denied Sept. 6, 1984.

Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

WENTWORTH, Judge.

Appellant Harms asserts violation of the sentencing guidelines, Fla.R.Crim.P. 3.701 ¹ in the imposition of the 15-year sentence appealed by him. He was sentenced on November 23, 1983, upon revocation of a four-year probationary term imposed in January 1982 on a guilty plea to a charge of dealing in stolen property. We reverse because the trial court erred (1) in rejecting defendant's election, before sentencing, to have the guidelines applied, and (2) in finding "as a matter of law that the Defendant is not entitled to treatment and sentencing under Sentencing Guidelines, effective October 1, 1983" because his "failure to be sentenced on September 1st was due to his willful and intentional failure to appear" on that date as ordered. The court alternatively found "reason for deviating" from the guidelines in appellant's failure to appear, i.e., "his own wrongdoing ... could not afford him the benefits of the sentencing guidelines ... recommendation." Although appellant's contentions with respect to improper grounds for deviation might be deemed premature or mooted by our initial determination of error, those issues will be treated briefly to avoid any contention that the sentence may be affirmed as a proper deviation under the rule which we find was not but should have been applied. ²

Appellant cogently argues that his failure to appear for prior scheduled sentencing (described in the order as "willful and intentional" without any evidentiary predicate for such terms) does not forfeit or waive "as a matter of law" his right to elect the guidelines for a sentence imposed after their effective date. The text of the rule, the opinion of the Court adopting it, ³ and analogous precedent all negate such waiver. See Johnson v. State, 453 So.2d 411 (Fla. 1st DCA 1984); Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984); Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979). A failure to appear under the circumstances shown in this case may, of course, be subject to independent statutory penalty. § 843.15, Florida Statutes. We are not here concerned with that potentiality, but note that the prescribed penalties do not expressly or inferentially affect the election of sentencing guidelines. This cause must accordingly be remanded for their application.

The order before us, and the supporting transcript, reflect the court's further determination that, assuming applicability of the Rule, appellant's failure to appear is wrongdoing which, standing alone, shows clear and convincing reason to deviate from any presumptive guidelines sentence otherwise applicable. The state inaptly relies on Wilkinson v. State, 322 So.2d 620 (Fla. 3d DCA 1975), as authority for the same breadth of discretion in deviation from the Rule as Wilkinson recognized in the former sentencing process. Such is plainly not the intendment of the Rule. We conclude upon review of the single stated reason for deviation in the present case that it cannot suffice because to do so would permit the trial court to do indirectly, by deviation, what he cannot do directly by denying election of the Rule initially based solely on a prior failure to appear. ⁴

We reverse and remand accordingly for sentencing anew consistent herewith.

ERVIN, C.J., concurs.

BOOTH, J., dissents.

1 In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 849 (Fla.1983), the Florida Supreme Court stated...