Simmons v. State, 95-2321
| Decision Date | 21 February 1996 |
| Docket Number | No. 95-2321,95-2321 |
| Citation | 668 So.2d 654 |
| Parties | 21 Fla. L. Weekly D497 Antrone Lamont SIMMONS, Appellant, v. STATE of Florida, Appellee. /2322. |
| Court | Florida District Court of Appeals |
An appeal from the Circuit Court for Escambia County; Kenneth L. Williams, Judge.
Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Attorney General; William J. Bakstran, Assistant Attorney General, Tallahassee, for appellee.
Antrone Lamont Simmons appeals his sentences entered after pleading no contest to violation of probation and possession of marijuana. Because both sentences combine nonstate sanctions of community control with a jail term and, thus, constitute departure sentences, we must reverse and remand for resentencing.
Based on the arrest for possession of marijuana, the trial court revoked appellant's probation for a 1993 possession of cocaine charge and sentenced him to two years' community control under the terms and conditions of the original probation with the added condition to serve 90 days in county jail. Appellant's recommended range under the pre-1994 guidelines was community control or 12-30 months' incarceration. Because the trial court combined community control with a jail term and, therefore, imposed a departure sentence without giving written reasons, we are required to reverse and remand for resentencing. Davis v. State, 617 So.2d 1139 (Fla. 1st DCA 1993), approved 630 So.2d 1059 (Fla.1994).
Appellant was also sentenced to two years of community control with a condition that he serve six months in county jail for the possession of marijuana conviction. Appellant argues that although he was sentenced under the 1994 guidelines, the trial court is still required to submit written reasons for combining nonstate sanctions. We agree.
In Davis, supra, the supreme court interpreted the recommended guideline sentence of any "nonstate sanction" according to its own committee notes adopted by Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 & 3.988), 522 So.2d 374 (Fla.1988):
(d)(8) The first guideline cell in each category (any nonstate prison sanction) allows the court the flexibility to impose any lawful term of probation with or without a period of incarceration as a condition of probation, a county jail term alone or any nonincarcerative disposition. Any sentence may include the requirement that a fine be paid. The sentences are found in forms 3.988(a)-(i).
The Davis court concluded that nonstate prison sanctions are mutually exclusive:
Thus, nonstate prison sanctions, which include county jail time, community control, and incarceration are disjunctive sentences. Combining any or all of them creates a departure sentence for which written reasons must be given.
According to the sentencing guidelines scoresheet, prepared pursuant to rule 3.990, appellant's sentencing points totaled 5.3. Because appellant's points are less than 40, the trial court could not sentence him to state prison without written reasons for departure. 3.702(d)(16), Fla.R.Crim.P. 1
The committee notes adopted by the supreme court in Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines, 628 So.2d 1084, (Fla.1993), describe the presumptive sentence where total sentence points are less than or equal to 40:
(d)(16) The presumptive sentence is assumed to be appropriate for the composite score of the defendant. Where the total sentence points do not exceed 40, the court has the flexibility to impose any lawful term of probation with or without a period of incarceration as a condition of probation, a county...
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...that under the 1994 guidelines, a combination of nonstate prison sanctions may not create a departure sentence. See Simmons v. State, 668 So.2d 654 (Fla. 1st DCA), review granted, 676 So.2d 414 (Fla.1996); Marotto v. State, 674 So.2d 215 (Fla. 4th DCA 1996). Therefore, as did our sister cou......
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...Appellate Intake Division, Second Judicial Circuit, Tallahassee, for respondent. WELLS, Justice. We have for review Simmons v. State, 668 So.2d 654 (Fla. 1st DCA 1996), in which the district court certified the following question to be of great public IS THE RULE IN STATE V. DAVIS, 630 So.2......
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...days in jail. On appeal, the district court reversed. Watkins. The district court relied upon its earlier decision in Simmons v. State, 668 So.2d 654 (Fla. 1st DCA 1996), holding that under the 1994 version of the sentencing guidelines, the combination of a sentence of community control wit......
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Marotto v. State, 95-3174
...The court did not give written reasons in this nonstate prison sentence. We agree, for the reasons expressed in Simmons v. State, 668 So.2d 654 (Fla. 1st DCA 1996), that this is a departure sentence requiring written reasons under State v. Davis, 630 So.2d 1059 In reversing, the Simmons cou......