Lambert v. State, Nos. 71890

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; EHRLICH; OVERTON, J., dissents with an opinion, in which McDONALD; GRIMES; OVERTON; McDONALD; GRIMES
Citation14 Fla. L. Weekly 281,545 So.2d 838
Docket Number72047,Nos. 71890
Decision Date15 June 1989
Parties14 Fla. L. Weekly 281 David LAMBERT, Petitioner, v. STATE of Florida, Respondent Bernhine W. YOUNG, Petitioner, v. STATE of Florida, Respondent.

Page 838

545 So.2d 838
14 Fla. L. Weekly 281
David LAMBERT, Petitioner,
v.
STATE of Florida, Respondent
Bernhine W. YOUNG, Petitioner,
v.
STATE of Florida, Respondent.
Nos. 71890, 72047.
Supreme Court of Florida.
June 15, 1989.

Page 839

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.

Page 840

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...

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207 practice notes
  • King v. State, No. 93-1261
    • United States
    • Court of Appeal of Florida (US)
    • December 15, 1994
    ...sentencing in either of these cases at the first sentencing hearing. King next argues that his position is supported by Lambert v. State, 545 So.2d 838 (Fla.1989). However, an habitual felony offender sentencing issue was not present in Lambert. This case merely held that factors considered......
  • Connolly v. State, No. 3D09–280.
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 2015
    ...construction” and “In Florida, the rule [of lenity] is not just an interpretive tool, but a statutory directive”); Lambert v. State, 545 So.2d 838, 841 (Fla.1989) (“In construing [penal] statutes, we begin with the principle that, where criminal statutes are susceptible to differing constru......
  • Lipscomb v. State, No. 89-213
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1991
    ...area remains in a state of flux. A unanimous court told us in State v. Pentaude, 500 So.2d 526 (Fla.1987), receded from Lambert v. State, 545 So.2d 838 (Fla.1989) that it was appropriate to exceed the guideline range plus one cell for violation of probation when the reason for violation was......
  • State v. Watts, No. 74117
    • United States
    • United States State Supreme Court of Florida
    • March 15, 1990
    ...that "no further increase or departure is permitted for any reason." Franklin, 545 So.2d at 853 (emphasis supplied); Lambert v. State, 545 So.2d 838, 841-42 (Fla.1989). See Fla.R.Crim.P. 3.701(d)(14). The circuit court's imposition of sentence on Watts and Smith is a clear violation of that......
  • Request a trial to view additional results
207 cases
  • King v. State, No. 93-1261
    • United States
    • Court of Appeal of Florida (US)
    • December 15, 1994
    ...sentencing in either of these cases at the first sentencing hearing. King next argues that his position is supported by Lambert v. State, 545 So.2d 838 (Fla.1989). However, an habitual felony offender sentencing issue was not present in Lambert. This case merely held that factors considered......
  • Connolly v. State, No. 3D09–280.
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 2015
    ...construction” and “In Florida, the rule [of lenity] is not just an interpretive tool, but a statutory directive”); Lambert v. State, 545 So.2d 838, 841 (Fla.1989) (“In construing [penal] statutes, we begin with the principle that, where criminal statutes are susceptible to differing constru......
  • Lipscomb v. State, No. 89-213
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1991
    ...area remains in a state of flux. A unanimous court told us in State v. Pentaude, 500 So.2d 526 (Fla.1987), receded from Lambert v. State, 545 So.2d 838 (Fla.1989) that it was appropriate to exceed the guideline range plus one cell for violation of probation when the reason for violation was......
  • State v. Watts, No. 74117
    • United States
    • United States State Supreme Court of Florida
    • March 15, 1990
    ...that "no further increase or departure is permitted for any reason." Franklin, 545 So.2d at 853 (emphasis supplied); Lambert v. State, 545 So.2d 838, 841-42 (Fla.1989). See Fla.R.Crim.P. 3.701(d)(14). The circuit court's imposition of sentence on Watts and Smith is a clear violation of that......
  • Request a trial to view additional results

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