Pentaude v. State
Decision Date | 22 November 1985 |
Docket Number | No. BD-301,BD-301 |
Parties | 10 Fla. L. Weekly 2625 Michael Allen PENTAUDE, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Kenneth L. Hosford, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Henri C. Cawthorn, Asst. Atty. Gen., Tallahassee, for appellee.
Michael Allen Pentaude appeals from a five year sentence imposed upon him following revocation of his probation. Appellant contends that defense counsel's attempt to conditionally elect the sentencing guidelines did not amount to an "affirmative selection" and that since he was not informed that his conditional election would not be given effect, he did not make a knowing and intelligent waiver of his right to parole eligibility. Alternatively, appellant argues that the trial court's reasons for departing from the presumptive guideline sentence were insufficient to warrant departure. We reverse and remand for resentencing.
Appellant was charged with grand theft auto by information filed September 23, 1983. He pled guilty and was placed on probation for five years. On April 9, 1984 an affidavit was filed which alleged that appellant had violated seven of the conditions of his probation. At the probation revocation hearing, appellant admitted the allegations and his probation was revoked. The recommended guidelines sentence was any non-state prison sanction. Prior to sentencing, the following exchange took place between the trial court and defense counsel:
Having received the maximum sentence allowed by statute, appellant now complains that he was not advised of the consequences of conditionally electing the sentencing guidelines. While defense counsel's inability to understand the law and properly advise her client is no justification, equivocation is not the law and we are compelled to remand for lack of compliance with section 921.001(4)(a), Florida Statutes (1983). 1 It has been settled by this court that a knowing and intelligent waiver of the right to parole eligibility need not be obtained before a defendant can be sentenced under the guidelines. Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984); Glover v. State, 474 So.2d 886 (Fla. 1st DCA 1985). However, an affirmative election to be sentenced under the guidelines must clearly be made on the record before the court can proceed with sentencing. Finklea v. State, 470 So.2d 90 (Fla. 1st DCA 1985).
Appellant's sentencing occurred after July 1, 1984, the effective date of Florida Rule of Criminal Procedure 3.701(d)(14) which allows the trial court to increase a...
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Tuthill v. State, 86-847
...guidelines range and impose an appropriate sentence within the statutory limit.' " Pentaude, 500 So.2d at 528 (quoting State v. Pentaude, 478 So.2d 1147, 1149 (Fla. 1st DCA 1985)). Pentaude delineates some of the factors which may constitute clear and convincing reasons for departure beyond......
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Stewart v. State, BC-473
...proper ground for departure and requires reversal. George David Ludmin v. State, 480 So.2d 1389 (Fla. 1st DCA 1985); Pentaude v. State, 478 So.2d 1147 (Fla. 1st DCA 1985); Ehrenshaft v. State, 478 So.2d 842 (Fla. 1st DCA 1985); Riggins v. State, 477 So.2d 663 (Fla. 5th DCA 1985); Boldes v. ......
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Terrell v. State, s. BD-490
...guideline sentencing before the court can sentence pursuant to the guidelines. s. 921.001(4)(a), Fla.Stat. (1983); Pentaude v. State, 478 So.2d 1147 (Fla. 1st DCA 1985); Finklea v. State, 470 So.2d 90 (Fla. 1st DCA 1985). Mere silence or a discussion of the presumptive sentence does not con......
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Ludmin v. State, BC-474
...the violation of probation. Fla.R.Crim.P. 3.701(d)(11); Donnell Stewart v. State, --- So.2d ---- (Fla. 1st DCA 1985); Pentaude v. State, 478 So.2d 1147 (Fla. 1st DCA 1985); Ehrenshaft v. State, 478 So.2d 842 (Fla. 1st DCA 1985); Riggins v. State, 477 So.2d 663 (Fla. 5th DCA 1985); Boldes v.......