Isgette v. State, 85-1899

• Decision Date: 01 October 1986
• Docket Number: No. 85-1899,85-1899
• Citation: 11 Fla. L. Weekly 2079,494 So.2d 534
• Parties: 11 Fla. L. Weekly 2079 Lawrence Blair ISGETTE, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 534

494 So.2d 534

11 Fla. L. Weekly 2079

Lawrence Blair ISGETTE, Jr., Appellant, v. STATE of Florida, Appellee.

No. 85-1899.

District Court of Appeal of Florida Fourth District.

Oct. 1, 1986.

David R. Smith, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Eddie J. Bell, Asst. Atty. Gen., West Palm Beach, for appellee.

HERSEY, Chief Judge.

Upon revocation of appellant's probation for intentionally running over one Greyson with his car, he elected to be sentenced under the guidelines. The sentence of five years in prison represents a four-category departure from the "any nonstate prison sanction" presumptive sentence justified by appellant's thirty-three points, and he appeals.

Four reasons were given in the "order of departure" entered by the trial court. The first was:

The Court finds that the primary purpose of sentencing is to punish the offender, as stated in F.R.Cr.P. 3.701(b)(2), and the Court find that the punishment recommended by the guidelines is not adequate for this defendant based on his prior convictions. Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984).

The parties correctly agree that, pursuant to our supreme court's recent decision in Hendrix v. State, 475 So.2d 1218 (Fla.1985), appellant's prior convictions could not be used as a basis for departing from the guidelines.

The second reason for departure was stated as follows:

The Court finds that the defendant violated his probation in the instant case and that a violation of probation is a clear and convincing reason for departure from a guideline sentence. Browning v. State, 465 So.2d 1357 (Fla. 5th DCA 1985).

Amended rule 3.701 d.14, which took effect July 1, 1984, provides that a trial judge, in imposing a sentence following revocation of probation, may increase the sentence only one category without additional reasons for departure. See Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985); Lorenzo v. State, 483 So.2d 790 (Fla. 4th DCA 1986) (citing Boldes with approval). Therefore, the fact that appellant was sentenced following a probation violation did not in itself allow the trial judge to depart from the guidelines to the extent that he did; we therefore must consider whether the additional reasons given were sufficient to permit the departure.

Thirdly, the trial court found that:

[T]his defendant, having been on probation before and having been sentenced to the state prison before, is not amenable to probation, and the sentence recommended by the guidelines, not being adequate, would not serve the ends of justice.

We glean from the record indications that the trial judge was under the mistaken impression that he could not sentence appellant to prison unless he departed from the guidelines, whereas in fact he could have imposed a sentence of up to thirty months in prison without giving reasons for departing, due to the fact that appellant was sentenced following revocation of probation. See Fla.R.Crim.P. 3.701 d.14. When the trial judge is under a mistaken impression such as this at the time he imposes sentence, the better practice is to remand for reconsideration by the trial judge as to whether, being advised of his misinterpretation, he still would have found departure necessary and, if so, to what extent. See Bradley v. State, 468 So.2d 378 (Fla. 1st DCA 1985), aff'd, 485 So.2d 1285 (Fla.1986); Knowlton v. State, 466 So.2d 278 (Fla. 4th DCA), rev. denied, 476 So.2d 675 (Fla.1985).

As its final reason for departure, the trial court stated:

The Court finds that the above reasons, standing alone, are adequate, clear and convincing reasons to depart from the guidelines, however, the Court also finds that the violence used in the act that caused the violation of probation was of such a nature and to such an extreme as to also provide a clear and convincing reason to depart from the guidelines.

Appellant contends that the level of violence involved could not be properly considered by the trial court because it relates not to the offense for which he was sentenced--the grand theft committed in 1982--but to the 1985 offense on which his revocation of probation was based.

The case of Rodriquez v. State, 464 So.2d 638 (Fla. 3d DCA 1985), which is directly on point, is contrary to appellant's position. In Rodriguez the defendant was convicted and placed on probation. His probation was later revoked when he committed auto theft. The court found the trial court properly considered the circumstances surrounding the auto theft in departing from the guidelines in sentencing appellant for the original offense because:

Although former Fla.R.Crim.P. 3.701(d)(11)--applicable here, but since amended--precludes a trial court from considering factors relating to the "instant offense," plainly the instant offense on which a probation revocation sentence is imposed is the offense for which the defendant was originally found guilty and placed on probation. § 948.06(1), Fla.Stat. (1984) ("If probation ... is revoked, the court shall adjudge the probationer ... guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have...