Lambert v. State

Citation14 Fla. L. Weekly 281,545 So.2d 838
Decision Date15 June 1989
Docket Number72047,Nos. 71890,s. 71890
Parties14 Fla. L. Weekly 281 David LAMBERT, Petitioner, v. STATE of Florida, Respondent Bernhine W. YOUNG, Petitioner, v. STATE of Florida, Respondent.
CourtUnited States State Supreme Court of Florida

Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for Lambert.

Thomas W. Turner of Thomas W. Turner, P.A., Orlando, for petitioners.

Robert A. Butterworth, Atty. Gen., and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for respondent.

PER CURIAM.

We have for review Lambert v. State, 517 So.2d 133 (Fla. 4th DCA 1987), and Young v. State, 519 So.2d 719 (Fla. 5th DCA 1988), to answer certified questions of great public importance. We have jurisdiction over these consolidated cases. Art. V, § 3(b)(4), Fla.Const. We quash the decisions of the district courts in both cases.

These cases present the issue of whether factors related to violation of probation or community control can be used as grounds for departing from the sentencing guidelines. For reasons discussed below, we conclude that such factors cannot support departure.

Lambert was placed on community control for a period of one and one-half years after pleading nolo contendere to charges of aggravated battery and aggravated assault. He subsequently was charged with violating community control. The state's evidence at the violation hearing indicated that while Lambert was at the home of a former girlfriend, Kathleen Gordon, the two argued and Lambert struck her several times with a fork or a knife, threatened to kill her, and struck one of her sons with the same object. The trial court found Lambert guilty of the violations. It revoked his community control, adjudicated him guilty of the original offenses for which he had been placed on community control, and sentenced him to serve concurrent fifteen- and five-year sentences. The guidelines range was twelve to thirty months, including the one-cell increase for violation of community control. See Fla.R.Crim.P. 3.701(d)(14). The court gave the following reasons for departure:

1. That the Defendant while on community control committed new substantive offenses.

2. That the new substantive offenses were committed while Defendant was away from his approved residence without the permission or knowledge of his community control officer.

3. That the new substantive violations were violent in nature.

4. That the new substantive offenses resulted in charges identical to those for which the Defendant was placed on community control, those being Aggravated Battery and Aggravated Assault.

5. That the Defendant committed these new offenses with a weapon to-wit: a knife.

6. That the Defendant did stab the victim, Kathleen Gordon, (the subject of violation of community control number two (2)), in three (3) places leaving scars that were shown in open court.

7. That the Defendant's violent actions in this matter were the result of an insignificant domestic problem.

8. That in addition to the stabbing of the victim, Kathleen Gordon, the Defendant committed three (3) counts of Aggravated Assault upon her minor children and her nephew who tried to come to her aid.

9. That one of Kathleen Gordon's children was also cut on the leg and bears a large scar which was displayed in open court.

10. That during the course of this attack the Defendant threatened to kill the victims.

Lambert, 517 So.2d at 133-34.

Lambert had been charged at the time of sentencing but not tried for the criminal conduct constituting the probation violations. The charges subsequently were dropped. The district court affirmed the appeal of the departure sentence, relying on State v. Pentaude, 500 So.2d 526 (Fla.1987). In Pentaude, this Court ruled that where an offense constituting violation of probation is sufficiently egregious, Florida Rule of Criminal Procedure 3.701(d)(14) cannot be read as limiting departure to a single cell. The district court in Lambert then certified the following question:

WHERE A TRIAL JUDGE FINDS THAT THE UNDERLYING REASONS FOR VIOLATION OF COMMUNITY CONTROL CONSTITUTE MORE THAN A MINOR INFRACTION AND ARE SUFFICIENTLY EGREGIOUS, MAY HE DEPART FROM THE PRESUMPTIVE GUIDELINES RANGE AND IMPOSE AN APPROPRIATE SENTENCE WITHIN THE STATUTORY LIMIT EVEN THOUGH THE DEFENDANT HAS NOT BEEN "CONVICTED" OF THE CRIMES WHICH THE TRIAL JUDGE CONCLUDED CONSTITUTED A VIOLATION OF HIS COMMUNITY CONTROL?

Lambert, 517 So.2d at 134.

Young's petition for review poses a like issue. Young pled guilty to two counts of selling cocaine and was sentenced to two concurrent terms of five years' probation. He subsequently was charged with violating probation. The state presented evidence at the violation hearing indicating that while on probation Young sold cocaine to a police informant on two occasions, and that when he was arrested at a later date, a piece of rock cocaine was found in the trunk of his car. At the violation hearing, the court made a judicial finding that Young had sold cocaine on two occasions and revoked his parole. He was sentenced to serve two concurrent fifteen-year sentences for the original offenses. The guidelines range was two and one-half to three and one-half years including a one-cell increase for violation of probation. The court gave the following reason for departure:

The reason for the guideline departure is that the Defendant committed a substantive violation of his probation in that the Defendant was on probation for two counts of selling cocaine and violated his probation by twice more selling cocaine. See Townsend v. State, 458 So.2d 856 (Fla. 2d D.C.A. 1984), and cases cited therein.

Young, 519 So.2d at 720.

When he was sentenced for violation of probation, Young had been charged with sale and possession of cocaine on the basis of the two alleged sales to the police informant. As to the first sale, he was tried and acquitted of sale, but found guilty of the lesser charge of possession. He was sentenced to the maximum guideline term of three and one-half years, to run consecutive to his other sentences. He had not yet been tried on the second alleged sale and subsequent possession. He ultimately was tried and convicted of sale and possession and was sentenced to the guidelines maximum of five and one-half years, again to run consecutively. The district court, relying on Pentaude, affirmed the departure sentences but certified the following question:

WHERE A TRIAL JUDGE FINDS THAT THE UNDERLYING REASONS FOR VIOLATION OF PROBATION CONSTITUTE MORE THAN A MINOR INFRACTION AND ARE SUBSTANTIVE VIOLATIONS, MAY HE DEPART FROM THE PRESUMPTIVE GUIDELINES RANGE AND IMPOSE AN APPROPRIATE SENTENCE WITHIN THE STATUTORY LIMIT EVEN THOUGH THE DEFENDANT HAS NOT BEEN "CONVICTED" OF THE CRIMES WHICH THE TRIAL JUDGE

CONCLUDED CONSTITUTED A VIOLATION OF HIS PROBATION?

Young, 519 So.2d 722. We answer both certified questions in the negative based on the following analysis.

I. THE NECESSITY OF PRIOR CONVICTION

If new offenses constituting a probation violation are to be used as grounds for departure when sentencing for the original offense, prior conviction on the new offenses is required. Florida Rule of Criminal Procedure 3.701(d)(11) provides in relevant part that:

Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction. Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.

The committee note to the rule states:

The court is prohibited from considering offenses for which the offender has not been convicted.

Though the note and rule are silent as to whether they apply to conduct constituting probation violation, they reasonably can be so read. Where a criminal statute is susceptible of different interpretations, it must be construed in favor of the accused. § 775.021(1), Fla.Stat. (1987). This Court has consistently required prior conviction for guideline departure in original sentencing proceedings. See State v. Jaggers, 526 So.2d 682, 684 (Fla.1988) ("Charges of criminal activity alone have never provided valid grounds for departure."); Williams v. State, 500 So.2d 501, 503 (Fla.1986) ("permitting departures for an offense for which a defendant has not been convicted is clearly prohibited"). Policy considerations that mandate conviction prior to departure at an original sentencing are equally applicable to sentencing following probation violation.

II. INAPPROPRIATENESS OF DEPARTURE EVEN WITH PRIOR CONVICTION

Even where conviction on the new offense constituting the probation violation is obtained prior to sentencing on the original offense, two basic problems are presented when the court attempts to use the probation violation as grounds for departure. First, severe conflict with Hendrix v. State, 475 So.2d 1218 (Fla.1985), is encountered where a defendant is sentenced simultaneously for both the original and the new offenses. In Hendrix, we held that departure may not be based upon factors already weighed in arriving at the presumptive sentence. During simultaneous sentencing, a single scoresheet must be used for all offenses pending before the court. Fla.R.Crim.P. 3.701(d)(1). Status points must be added to the scoresheet total because the new offense was committed while under legal restraint. Fla.R.Crim.P. 3.701(d)(6). These status points are used in calculating the presumptive sentence for all offenses disposed of under that scoresheet. To add status points due to legal restraint and to simultaneously depart based upon probation violation constitutes double-dipping.

Second, violation of probation is not itself an independent offense punishable at law in Florida. The legislature has addressed this issue and chosen to punish conduct underlying violation of probation by revocation of probation, conviction and sentencing...

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