Peterson v. State, 87-1762
| Decision Date | 27 April 1988 |
| Docket Number | No. 87-1762,87-1762 |
| Citation | 524 So.2d 473,13 Fla. L. Weekly 1047 |
| Parties | 13 Fla. L. Weekly 1047 Darrell PETERSON, a/k/a Darrell Powell, a/k/a Darryln Lamar Powell, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant,
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellee.
Darrell Peterson appeals from the sentence imposed upon him following revocation of his probation. He argues that the trial court erred in increasing his sentence one cell for revocation of probation and that his sentence contains a scrivener's error. We affirm the appellant's judgment and sentence but remand for correction of the scrivener's error.
On January 20, 1986, the appellant pled guilty to charges of possession of cocaine and possession of cannabis and was placed on probation for three years. In February 1987 he was charged with sale and possession of cocaine and with violation of probation. In March 1987 the appellant was charged with two counts of sale of a counterfeit substance.
On April 13, 1987, the appellant pled nolo contendere to all charges against him. The sale of cocaine was used as the primary offense in calculating the presumptive guidelines sentence. The appellant's score included points for legal constraint since the appellant was on probation for possession of cocaine at the time he committed the other offenses. The appellant's score fell into the twelve to thirty months' incarceration or community control range; however, it was increased on the scoresheet to the next higher category of two and one-half to three and one-half years because of the appellant's violation of probation. The trial court sentenced the appellant to two and one-half years in prison; the sentences for all offenses to run concurrently.
The appellant contends that the trial court erred in bumping up his sentence one cell for violation of probation. He cites Green v. State, 513 So.2d 794 (Fla. 4th DCA 1987), in support of his argument.
The Fourth District in Green followed this court's decision in Meadows v. State, 498 So.2d 1018 (Fla. 2d DCA 1986), in which we held that since the defendant was not on probation for the primary offense and did not violate probation for that offense, points could be included for legal constraint, but a one cell bump for violation of probation was impermissible. We receded from Meadows in Frick v. State, 510 So.2d 1077 (Fla. 2d DCA 1987).
The appellant was on probation at the time the sale of cocaine, the primary offense, was committed; therefore, points were properly scored for legal...
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Peters v. State
...498 So.2d 1018 (Fla. 2d DCA 1986), receded from en banc, Frick v. State, 510 So.2d 1077 (Fla. 2d DCA 1987). Contra Peterson v. State, 524 So.2d 473 (Fla. 2d DCA 1988). While we agree the language in rule 3.701(d)(14) may be ambiguous, we do not believe it mandates the result urged by Peters......
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Bankston v. State, 92-03352
...convinced us that we misread Peters v. State, 531 So.2d 121 (Fla.1988), and failed to follow our own precedent. See Peterson v. State, 524 So.2d 473 (Fla. 2d DCA 1988), disapproved on other grounds, 613 So.2d 1319 (Fla.1993); Pearson v. State, 514 So.2d 374 (Fla. 2d DCA 1987); Frick v. Stat......
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Gonzalez v. State, 88-2881
...points were added to the scoresheet because of Gonzalez's legal constraint status at the time of the primary offense. Peterson v. State, 524 So.2d 473 (Fla. 2d DCA 1988). However, this one-cell enhancement is discretionary with the trial judge, and we cannot determine from the record before......