State v. Lamar
| Decision Date | 24 August 1995 |
| Docket Number | No. 84867,84867 |
| Citation | 659 So.2d 262 |
| Parties | 20 Fla. L. Weekly S431 STATE of Florida, Petitioner, v. Jimmy Dale LAMAR, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen., Robert J. Krauss, Sr. Asst. Atty. Gen., Chief of Crim. Law and Ron Napolitano, Asst. Atty. Gen., Tampa, for petitioner.
Gary R. Gossett, Jr., Sebring, for respondent.
We have for review the Second District's decision in Lamar v. State, 648 So.2d 775 (Fla. 2d DCA 1994), in which the district court certified the following question of great public importance:
WHERE A DEFENDANT IS SENTENCED AT THE SAME SENTENCING HEARING FOR A NEW FELONY AND A VIOLATION OF PROBATION GROUNDED UPON THE NEW FELONY, IS THE TRIAL COURT LIMITED TO A ONE-CELL INCREASE FROM THE ORIGINAL SCORESHEET UNDER THE GUIDELINES FOR THE VIOLATION OF PROBATION, PURSUANT TO GRADY v. STATE, 618 SO.2D 341 (FLA. 2D DCA 1993), OR CAN THE TRIAL COURT IMPOSE THE MOST SEVERE SENTENCING SCHEME PERMISSIBLE AS TO BOTH CRIMES AS OUTLINED IN STATE v. TITO, 616 SO.2D 39 (FLA.1993)?
Id. at 776. 1
In 1992 Lamar entered a nolo contendere plea to sexual battery, a second-degree felony. 2 Three weeks later an affidavit of violation of probation was filed alleging that Lamar had violated probation by committing sexual battery. For this new crime, the state charged Lamar with sexual battery. Following a trial, the jury found Lamar guilty of attempted sexual battery, a third-degree felony.
The trial judge sentenced Lamar on both offenses at the same sentencing hearing. A guidelines scoresheet which resulted in the most severe potential sanction was prepared and utilized to sentence Lamar on both offenses. On the scoresheet, the new substantive offense of attempted sexual battery was designated as the primary offense and the probationary offense, along with other prior offenses were designated as prior record. This yielded a total score of 349 points, which corresponded to a recommended range of nine to twelve years and a permitted range of seven to seventeen years.
On the original sexual battery charge, the trial judge revoked Lamar's probation and sentenced him to fifteen years in prison. On
the new crime of attempted sexual battery, the trial judge sentenced Lamar to two years in prison followed by three years probation consecutive to the fifteen-year sentence. Lamar appealed and the district court reversed.
The issue in this case concerns the correctness of the trial court's sentencing method. Relying on its decision in Grady v. State, 618 So.2d 341 (Fla. 2d DCA 1993), the district court explained that "in sentencing Lamar on the violation of probation offense, the trial court is limited to a one-cell bump on the original scoresheet for that offense." 648 So.2d at 776. Under the district court's sentencing scheme, the sentencing court would be required to do the following:
[U]se that scoresheet which recommends the most severe sanction. Once the appropriate scoresheet is selected and scored, the court then knows what the maximum total guidelines sentence is, and can sentence accordingly for each individual offense within that total maximum range. In that regard, the total sentence imposed for any violation of probation will be the recommended sentence as taken from the original scoresheet on the underlying substantive offense, plus the allowed one-cell bump for each violation of probation. Sentencing on other offenses will proceed likewise according to the guidelines and other applicable statutes. We believe this procedure is in accord with the supreme court's recent pronouncement in State v. Tito, 616 So.2d 39 (Fla.1993). See also State v. Stafford, 593 So.2d 496 (Fla.1992).
Id. (quoting Grady v. State, 618 So.2d at 344). We find the above sentencing scheme inconsistent with our holdings in Stafford and Tito.
In Tito v. State, we echoed the single scoresheet requirement announced in State v. Stafford, and said:
In State v. Stafford, 593 So.2d 496 (Fla.1992), however, we held that when probation violation cases are being sentenced in conjunction with new substantive offenses, multiple scoresheets are to be prepared to determine the most severe sanction. Once the scoresheet with the most severe sanction is determined, that is the scoresheet to be used. The dissent in the case under review was correct on this issue, and only one scoresheet should be used.
616 So.2d at 40. In Stafford, we interpreted Florida Rule of Criminal Procedure 3.701 to permit this sentencing scheme when multiple offenses were being considered for sentencing. 3 Stafford was sentenced for a violation of probation and for a new substantive offense. In sentencing Stafford, the judge treated Stafford's original conviction as the "primary offense." 593 So.2d at 496. Stafford argued that his original conviction had to be scored as prior record rather than as the primary offense. We disagreed and said that "in the case of multiple offenses" Florida Rules of Criminal Procedure 3.701 required the following for purposes of determining the primary offense at sentencing:
a) A separate guidelines scoresheet shall be prepared scoring each offense at conviction as the "primary offense at conviction" with the other offenses at conviction scored as "additional offenses at conviction."
b) The guidelines scoresheet which recommends the most severe sentence range shall be the scoresheet to be utilized by the sentencing judge pursuant to these guidelines.
4. Additional Offenses at Conviction: All other offenses for which the offender is convicted and which are pending before the court for sentencing at the same time shall be scored as additional offenses based upon their degree and the number of counts of each.
5. a) "Prior record" refers to any past criminal conduct on the part of the offender, resulting in conviction, prior to the commission of the primary offense.
593 So.2d at 497 (quoting rule 3.701). 4 In other words, under this sentencing scheme, "separate scoresheets should be prepared scoring each offense as the primary offense, and the scoresheet which recommends the most severe sentencing range should be used." Id.
For instance, whenever a defendant is being sentenced for both a violation of probation and a new substantive offense, the violation of probation can be scored as either the primary offense or as prior record so long as it gives the most severe...
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State v. Meeks
...as "one which is complete of itself and not dependent upon another." Black's Law Dictionary 1429 (6th ed.1990); see also State v. Lamar, 659 So.2d 262 (Fla.1995). In view of these definitions, the normal usage of the phrase "substantive violation" implies a circumstance that is unrelated an......
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Meeks v. State, 1D97-2905.
...as "one which is complete of itself and not dependent upon another." Black's Law Dictionary 1429 (6th ed.1990); see also State v. Lamar, 659 So.2d 262 (Fla.1995). In view of these definitions, the normal usage of the phrase "substantive violation" implies a circumstance that is unrelated an......
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Adekunle v. State, 4D05-3492.
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