Roberts v. State, 95-557

• Decision Date: 11 March 1996
• Docket Number: No. 95-557,95-557
• Citation: 677 So.2d 309
• Court: Florida District Court of Appeals
• Parties: 21 Fla. L. Weekly D646 Christopher ROBERTS, Appellant, v. STATE of Florida, Appellee.

Page 309

677 So.2d 309

21 Fla. L. Weekly D646

Christopher ROBERTS, Appellant, v. STATE of Florida, Appellee.

No. 95-557.

District Court of Appeal of Florida,

First District.

March 11, 1996.

An appeal from the Circuit Court for Baker County; Nath C. Doughtie, Judge.

Nancy A. Daniels, Public Defender; Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Trisha E. Meggs and Amelia L. Beisner, Assistant Attorneys General, Tallahassee, for Appellee.

BENTON, Judge.

Christopher Roberts appeals his sentence for burglary of a dwelling in the course of which he committed an assault, all in violation of section 810.02(2)(a), Florida Statutes (1993). On appeal, he argues that the trial court erred in imposing a probationary split departure sentence because the incarcerative portion of the sentence deviated more than 25 percent from the recommended guidelines prison sentence. We affirm, but certify a question to the Florida Supreme Court as a matter of great public importance.

On November 21, 1994, Mr. Roberts entered a plea of nolo contendere to an information charging burglary of a dwelling with an assault committed in the course of the offense. There was no agreement as to a sentence. The trial court departed from the applicable 1994 sentencing guidelines range of 34.5 months to 57.5 months, imposing a departure sentence of 72 months in state prison followed by 24 months on probation. Contemporaneously, the trial court filed written reasons ¹ for the departure sentence. ²

On appeal, Mr. Roberts contends that under Florida Rule of Criminal Procedure 3.702 a court cannot order incarceration in excess of the 1994 guidelines range if it imposes a split sentence. Florida Rule of Criminal Procedure 3.702(d)(19) states:

The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall be within the guidelines sentence unless a departure is ordered.

If a split sentence is imposed, the incarcerative portion of the sentence must not deviate more than 25 percent from the recommended guidelines prison sentence. The total sanction (incarceration and community control or probation) shall not exceed the term provided by general law or the guidelines recommended sentence where the provisions of subsection 921.001(5) apply.

(Emphasis added.) The first sentence of subdivision (d)(19) states that a sentence shall be imposed or suspended "for each separate count, as convicted." There is no exception to this requirement.

The second sentence of subdivision (d)(19) mandates that the "total sentence" for each count on which a defendant is convicted not exceed the guidelines "unless a departure is ordered." The third sentence of subdivision (d)(19), starting a new paragraph dealing with split sentences, contains no exception to the requirement that "the incarcerative portion of the sentence must not deviate more than 25 percent from the recommended guidelines prison sentence." The fourth sentence, stating that the "total sanction ... shall not exceed the term provided by general law[,]" also contains no exception.

Florida Rule of Criminal Procedure 3.702(d)(19) restates the substance of committee note to subdivision (d)(12) of Florida Rule of Criminal Procedure 3.701 (the former sentencing guidelines), which provides:

The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of subdivision (d)(11) are complied with.

If a split sentence is imposed (i.e. a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law.

(Emphasis added.) In State v. Rice, 464 So.2d 684 (Fla. 5th DCA 1985), the court stated:

The State does not argue the power of the trial court to depart from a presumptive sentence by reducing it, but contends only that the sentence imposed is a split sentence and that it therefore violates Committee Note (d)(12) to Florida Rule of Criminal Procedure 3.701 because the incarcerative portion of the sentence is less than the minimum of the guideline range. At the time of sentencing, Committee Note (d)(12) read as follows.3

3 The second paragraph of this committee note has since been amended to read:

If a split sentence is imposed ... the incarceration portion imposed shall not be less than the minimum of the guideline nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law

While the amended section does not apply retroactively, it would not change the result in this case.

The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.

If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range. (Emphasis added).

The transcript of the sentencing hearing and the notation on the scoresheet clearly indicate[ ] that this was a departure sentence. Under the above-mentioned version of paragraph (d)(12) this court has previously approved a departure sentence where the combined period of incarceration and probation exceeded the guideline sentence. MacFarland v. State, 462 So.2d 496 (Fla. 5th DCA 1984). Given a proper case for departure, there is no reason for a different result where the departure is in the nature of a reduction of sentence rather than an enhancement. In other words, note (d)(12) does not control where the judge properly departs from the guidelines.

Id. at 686 & n. 3. Also addressing commission note (d)(12) to Florida Rule of Criminal Procedure 3.701, the Second District stated:

When sentencing pursuant to the guidelines, a trial judge may impose a split sentence, but if he does, the incarcerative portion must not be less than the minimum guidelines range. Comm. Note (d)(12) Fla.R.Crim.P. 3.701. The trial judge may, of course, depart from this requirement if he provides a valid written reason for doing so. State v. McCall, 573 So.2d 362 (Fla. 5th DCA 1990).

State v. Waldo, 582 So.2d 820, 821 (Fla. 2d DCA 1991) (emphasis added); see also Baggett v. State, 637 So.2d 303, 304 (Fla. 1st DCA 1994) (stating that "no written reasons were required" since the maximum of the guidelines range was 27 years and the split sentence imposed was 25 years incarceration plus 10 years probation).

While "[e]xisting caselaw construing the application of sentencing guidelines that is in conflict with the provisions of this rule ... is superseded by the operation of this rule[,]" Fla.R.Crim.P. 3.702(b), existing caselaw ³ construes language substantially the same as Florida Rule of Criminal Procedure 3.702(d)(19). Neither provision evinces any public policy reason why trial courts should not be permitted to specify incarcerative portions of probationary split sentences longer or shorter than guidelines recommendations so long as the sentencing court complies with other applicable statutes and rules in imposing the departure sentence.

Pertinent Florida caselaw seems to require a construction ⁴ of the third sentence of subdivision (d)(19) that makes an exception for departure sentences. On its face, Florida Rule of Criminal Procedure 3.702(d)(19) may be read as a flat prohibition against imposition of a departure sentence where the incarcerative portion of a probationary split sentence falls outside the guidelines range. But the cases infer an exception which is not stated in the third sentence, and which need not (and in fact cannot) be read into either of the other sentences...