Jordan v. State, 84-532
| Citation | 460 So.2d 477 |
| Decision Date | 05 December 1984 |
| Docket Number | No. 84-532,84-532 |
| Parties | Christopher Leon JORDAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
In this sentencing guidelines case, the question we must resolve is whether the appellant affirmatively selected to be sentenced under the guidelines. We hold that he did not, and reverse for resentencing.
The appellant was charged by information in 1982 with burglary of a structure and resisting or obstructing an officer. He entered a plea of guilty and was placed on six years' probation. On October 11, 1983, an affidavit was filed alleging that the defendant had violated the terms of his probation in several respects. The appellant admitted to the violations of probation. The trial judge announced that he would sentence the appellant outside the guidelines if the appellant chose to be sentenced under the guidelines. The appellant thereupon was sentenced to five years' imprisonment on the burglary charge. No sentence was imposed on the charge of resisting or obstructing an officer. This timely appeal followed.
Section 921.001(4)(a) provides that the sentencing guidelines shall be applied to all felonies, except capital felonies, committed on or after October 1, 1983, and to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions of chapter 921. In the instant case, since the offense for which the appellant was sentenced occurred prior to October 1, 1983 the question is whether the appellant affirmatively selected to be sentenced under the guidelines. The significance of the question to the appellant is that if he was not sentenced pursuant to the guidelines, he is eligible for parole.
There is no doubt that the trial judge intended to, and in fact did, utilize the guidelines in imposing a sentence. The record, however, does not indicate that the appellant affirmatively selected to be sentenced under the guidelines. He asserts that he never did so. We have studied the record and find confusion on this. Obviously the trial judge believed the appellant had selected sentencing under the guidelines. The following colloquy is the sole portion of the record to which we can look for guidance:
THE COURT: I feel Mr. Jordan's history is such that should he elect to go under the guidelines I will--I have plenty of evidence here to go outside the guidelines and will do so.
MR. ATKIN [defense counsel]: May I have a minute?
THE COURT: Uh, huh.
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THE COURT: .... I will tell you at this time that should you plead guilty to violating your terms and conditions of probation, I will sentence you to consecutive State...
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Brinson v. State, s. BC-45
...a sufficiently affirmative statement to meet the requirements of Rule 3.701, Florida Rules of Criminal Procedure. See Jordan v. State, 460 So.2d 477 (Fla. 2d DCA 1984); cf. Parsons v. State, 470 So.2d 834 (Fla. 2d DCA 1985). While it is true that counsel can make an election of guideline's ......
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Coleman v. State, 84-2697
...counsel does not constitute a clear and unequivocal election. Blackwelder v. State, 476 So.2d 280 (Fla. 2d DCA 1985); Jordan v. State, 460 So.2d 477 (Fla. 2d DCA 1984). The record fails to disclose that appellant elected to be sentenced under the guidelines for the 1983 crime of delivery of......
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Cannada v. State, 84-1131
...imposing a guidelines sentence absent Cannada's affirmative selection. Hart v. State, 464 So.2d 592 (Fla. 2d DCA 1985); Jordan v. State, 460 So.2d 477 (Fla. 2d DCA 1984); Rodriguez v. State, 458 So.2d 899 (Fla. 2d DCA Although it is not necessary for us to now decide this issue, we have gra......
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Ames v. State, 84-475
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