Higgs v. State, 84-2331
| Citation | 10 Fla. L. Weekly 1369,470 So.2d 75 |
| Decision Date | 04 June 1985 |
| Docket Number | No. 84-2331,84-2331 |
| Parties | 10 Fla. L. Weekly 1369 Bernard Eugene HIGGS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Jacki B. Geartner, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
Appellant pleaded guilty to charges of grand theft and burglary. He was adjudicated guilty and placed on probation for a total of three years, for both offenses. Several months later, appellant was charged by information with another burglary. An affidavit of probation violation was filed, alleging that appellant had failed to pay costs of supervision, and had committed the offenses of burglary and trespass while on probation. Following a hearing, the trial court revoked appellant's probation and sentenced him under the sentencing guidelines, Fla.R.Crim.P. 3.701, to two concurrent five year sentences of imprisonment. This appeal is taken from the order revoking probation and imposing sentence.
It is contended, first, that the trial court erred in finding that appellant had failed to pay supervision costs and, second, that the trial court erred in sentencing appellant to an enhanced sentence where the court expressly relied upon a miscalculated recommended sentence under the guidelines. We find merit in both of these contentions.
The finding in the order under review that appellant failed to pay supervision costs is stricken as being unsupported by the evidence. Edwards v. State, 439 So.2d 1028 (Fla. 3d DCA 1983). We note, however, that appellant does not challenge, and we shall not disturb, the revocation of probation, since it is supported by the showing of two additional substantial violations of probation. Edwards v. State, 439 So.2d at 1029.
Regarding appellant's second contention, it is clear that a trial court may properly use a probation violation as a reason to enhance a defendant's presumptive sentence established under the sentencing guidelines. Tucker v. State, 464 So.2d 211 (Fla. 3d DCA 1985); Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); Fla.R.Crim.P. 3.701(d)(14). However, this court held in Tucker v. State, 464 So.2d at 212, which we now follow, that an incorrectly calculated minimum-maximum sentence range under the guidelines constitutes an erroneous base upon which the trial court exercises its discretion in aggravating the sentence, and requires reversal for...
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Sellers v. State, 90-2367
...aggravating the sentence, and requires reversal for resentencing, even in the absence of a contemporaneous objection." Higgs v. State, 470 So.2d 75, 76 (Fla. 3d DCA 1985). See also, Tucker v. State, 464 So.2d 211 (Fla. 3d DCA 1985). Only in circumstances where the appellate court is clearly......
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State v. Anderson
...doctrine despite the erroneous score. Sellers v. State, 578 So.2d 339, 341 (Fla. 1st DCA) (citations omitted) (quoting Higgs v. State, 470 So.2d 75, 76 (Fla. 3d DCA 1985)), approved on other grounds, 586 So.2d 340 (Fla.1991); see, e.g., Mooney v. State, 864 So.2d 60, 62 (Fla. 4th DCA 2003) ......
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Guardado v. State, 89-924
...the inquiry is legal constraint at the time of the original offense, not at the time of revocation of probation. Higgs v. State, 470 So.2d 75, 76 (Fla. 3d DCA 1985); Fla.R.Crim.P. 3.701(d)6. See generally Ree v. State, 14 F.L.W. 565 (Fla. Nov. 16, 1989); Lambert v. State, 545 So.2d 838, 841......
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Gissinger v. State, 84-1769
...also increase the sentence by one cell pursuant to Rule 3.701(d)(14). Cf. Hendrix v. State, 475 So.2d 1218 (Fla.1985).4 Higgs v. State, 470 So.2d 75 (Fla. 3d DCA 1985); Daniels v. State, 462 So.2d 51 (Fla. 3d DCA 1984); Burke v. State, 460 So.2d 1022 (Fla. 2d DCA 1984); Addison v. State, 45......