Nealy v. State, 87-244
| Citation | 518 So.2d 985,13 Fla. L. Weekly 256 |
| Decision Date | 22 January 1988 |
| Docket Number | No. 87-244,87-244 |
| Parties | 13 Fla. L. Weekly 256 Anthony Jerome NEALY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Sharon Bradley, Asst. Public Defender, for appellant.
Robert Butterworth, Atty. Gen., and William A. Hatch, Asst. Atty. Gen., for appellee.
Anthony Jerome Nealy appeals from a sentence of five years' imprisonment, following violation of community control, for attempted lewd and lascivious assault upon a child. Finding Nealy was not given the opportunity to elect to be sentenced pursuant to the sentencing guidelines at the time he was originally sentenced, we vacate the sentence and remand for resentencing.
Nealy was charged in October 1983 with one count of lewd and lascivious assault upon a child under the age of 14, a second degree felony (§ 800.04, Fla.Stat. (1983)). The crime was alleged to have occurred on 4 July 1983 and "at various and diverse times between July 4, 1983 and August 15, 1983." Nealy pleaded nolo contendere to attempted lewd and lascivious assault (a third degree felony) and, in January 1984, he was placed on probation for five years. Imposition of sentence was withheld.
In June 1985, Nealy was charged with probation violations. In September 1985, the court found he had indeed violated the terms of his probation, revoked probation, and sentenced him on the underlying felony, as a youthful offender, to 30 months' incarceration (with credit for time served) to be followed by two years' community control. Although the record contains a sentencing guidelines scoresheet prepared at the time of sentencing showing a recommended sentence of any nonstate prison sanction, there is nothing in the record indicating that Nealy affirmatively elected to be sentenced pursuant to the guidelines. No appeal from the sentence was taken.
After Nealy was released from incarceration, and while on community control, he was charged with community control violations and brought up for resentencing. This time, he affirmatively elected to be sentenced pursuant to the sentencing guidelines. The guidelines scoresheet indicated a presumptive sentence of any nonstate prison sanction. The trial court, however, found Nealy violated community control and resentenced him on the underlying felony to five years' imprisonment with credit for time served. The trial court gave written reasons for departure. This appeal ensued.
Nealy makes two arguments in his initial brief. He first contends that the...
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Crowder v. State, 98-2961.
...the court erred in failing to afford defendant this option. Baker v. State, 659 So.2d 713 (Fla. 4th DCA 1995); Nealy v. State, 518 So.2d 985 (Fla. 1st DCA 1988); Sias v. State, 464 So.2d 1276 (Fla. 3d DCA 1985); Schmitt v. State, 458 So.2d 1183 (Fla. 5th DCA 1984). Upon resentencing, defend......