Jackson v. State, AW-388

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SMITH; ZEHMER; JOANOS; JOANOS
• Citation: 454 So.2d 691
• Parties: Alfred Floyd JACKSON, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. AW-388,AW-388
• Decision Date: 06 August 1984

Page 691

454 So.2d 691 Alfred Floyd JACKSON, Appellant,
v.
STATE of Florida, Appellee. No. AW-388. District Court of Appeal of Florida,
First District. Aug. 6, 1984.
Rehearing Denied Sept. 5, 1984.

Michael Allen, Public Defender, Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.

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

SMITH, Judge.

Appellant contends that the court below committed reversible error in refusing to sentence him pursuant to the new sentencing guidelines set forth in Rule 3.701, Florida Rules of Criminal Procedure, effective October 1, 1983, adopted by opinion In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). We agree, and remand for resentencing.

This case is factually indistinguishable from Duggar v. State, 446 So.2d 222 (Fla.

Page 692

1st DCA 1984). ¹ In both cases, the defendants were placed on probation prior to the effective date of the guidelines, probation was revoked subsequent to the effective date of the guidelines, and on sentencing both defendants requested sentencing under the guidelines and these requests were denied by the trial court.

The trial court did not have the benefit of our decision and opinion in Duggar at the time of sentencing. The parties to this appeal were advised of and duly took note of the decision in their briefs. Appellant correctly insists that Duggar warrants reversal, while the State acknowledges the applicability of the guidelines to appellant's sentencing, under Duggar, but nevertheless argues that reversal and resentencing is not required. The State's position is premised upon the fact that the trial judge, in announcing his ruling that the guidelines were not applicable, further stated that if an appellate court should rule that appellant was entitled to be sentenced according to the guidelines, he would depart from the guidelines and impose a three year sentence, for the reason that appellant did not comply with his conditions of probation. The State contends that even if the trial judge erred in denying appellant's request to be sentenced under the guidelines, appellant's demonstrated unamenability to probation was a sufficient basis for the trial judge's departure from the sentencing guidelines.

The State's argument ignores the language in Section 921.001(4)(a), Florida Statutes (1983), which unambiguously provides that the guidelines shall be applied to all felonies (except capital and life felonies) committed prior to October 1, 1983, for which sentencing occurs after October 1, 1983, when the defendant affirmatively selects to be sentenced pursuant to the guidelines. We recognize that a trial judge may go outside the recommended range if he explains in writing the reasons...