State v. Tuthill, No. 72096
| Court | United States State Supreme Court of Florida |
| Writing for the Court | PER CURIAM; EHRLICH; OVERTON |
| Citation | 14 Fla. L. Weekly 297,545 So.2d 850 |
| Parties | 14 Fla. L. Weekly 297 STATE of Florida, Petitioner, v. Harold TUTHILL, Respondent. |
| Decision Date | 15 June 1989 |
| Docket Number | No. 72096 |
Page 850
v.
Harold TUTHILL, Respondent.
Application for Review of the Decision of the District Court of Appeal--Direct Conflict of Decisions, Third District--Case No. 86-847 (Dade County).
Page 851
Robert A. Butterworth, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., Miami, for petitioner.
Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent.
PER CURIAM.
We have for review the opinion of the Third District Court of Appeal in Tuthill v. State, 518 So.2d 1300 (Fla. 3d DCA 1988), which is in direct and express conflict with Lambert v. State, 517 So.2d 133 (Fla. 4th DCA 1988), and Young v. State, 519 So.2d 719 (Fla. 5th DCA 1988). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
We accepted review in both Young and Lambert based on the following certified question:
WHERE A TRIAL JUDGE FINDS THAT THE UNDERLYING REASONS FOR VIOLATION OF PROBATION CONSTITUTE MORE THAN A MINOR INFRACTION AND ARE SUBSTANTIVE VIOLATIONS, MAY HE DEPART FROM THE PRESUMPTIVE GUIDELINES RANGE AND IMPOSE AN APPROPRIATE SENTENCE WITHIN THE STATUTORY LIMIT EVEN THOUGH THE DEFENDANT HAS NOT BEEN "CONVICTED" OF THE CRIMES WHICH THE TRIAL JUDGE CONCLUDED CONSTITUTED A VIOLATION OF HIS PROBATION?
Young, 519 So.2d at 722. * The case before us involves this identical issue. In 1983, Tuthill pled nolo contendere to a charge of a lewd and lascivious act in the presence of a child and was sentenced to four years of probation. Then, in 1984, Tuthill was charged by affidavit with violating his probation by committing a lewd and lascivious act upon a minor. The trial court revoked Tuthill's probation and sentenced him to fifteen years in prison, and the state entered a nolle prosequi on the new substantive charge.
The third district court remanded for a new sentencing hearing, Tuthill v. State, 478 So.2d 409 (Fla.1985), and on resentencing the trial court again sentenced Tuthill to fifteen years in prison, using the probation and the violation of probation as the principle reasons for departure. The third district reversed the sentence again, holding that a conviction on the new substantive count was required before it could be used as a reason to depart from the guidelines.
We have recently addressed this issue in Lambert v. State, 545 So.2d 838 (Fla.1989) (consolidated with...
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King v. State, No. 93-1261
...one cell bump up[, but enhancement to this extent is permissible.] The same 4-3 majority confirmed this decision in State v. Tuthill, 545 So.2d 850 (Fla.1989) and a unanimous court approved this position in Franklin v. State, 545 So.2d 851 (Fla.1989). A 6-1 majority approved it in Dewberry ......
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Lipscomb v. State, No. 89-213
...in violation cases in excess of the authorized one cell bump up. The same 4-3 majority confirmed this decision in State v. Tuthill, 545 So.2d 850 (Fla.1989) and a unanimous court approved this position in Franklin v. State, 545 So.2d 851 (Fla.1989). A 6-1 majority approved it in Dewberry v.......
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Boobyyaa v. Sec'y, CASE NO. 8:13-cv-1301-T-23TGW
...the trial court cannot find that Swilley substantively violated his community control by committing new offenses. Cf. State v. Tuthill, 545 So. 2d 850, 851 (Fla. 1989) (holding that a new criminal offense can constitute a substantive violation of probation for purposes of imposing a guideli......
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Christian v. State, No. 5D11–4495.
...independently prosecute new criminal charges in order to allege the conduct as a violation of probation. See, e.g., State v. Tuthill, 545 So.2d 850, 851 (Fla.1989) ; Swilley, 781 So.2d at 460. Clearly, if the legislature had intended to add additional procedural or proof requirements to the......
-
King v. State, No. 93-1261
...one cell bump up[, but enhancement to this extent is permissible.] The same 4-3 majority confirmed this decision in State v. Tuthill, 545 So.2d 850 (Fla.1989) and a unanimous court approved this position in Franklin v. State, 545 So.2d 851 (Fla.1989). A 6-1 majority approved it in Dewberry ......
-
Lipscomb v. State, No. 89-213
...in violation cases in excess of the authorized one cell bump up. The same 4-3 majority confirmed this decision in State v. Tuthill, 545 So.2d 850 (Fla.1989) and a unanimous court approved this position in Franklin v. State, 545 So.2d 851 (Fla.1989). A 6-1 majority approved it in Dewberry v.......
-
Boobyyaa v. Sec'y, CASE NO. 8:13-cv-1301-T-23TGW
...the trial court cannot find that Swilley substantively violated his community control by committing new offenses. Cf. State v. Tuthill, 545 So. 2d 850, 851 (Fla. 1989) (holding that a new criminal offense can constitute a substantive violation of probation for purposes of imposing a guideli......
-
Christian v. State, No. 5D11–4495.
...independently prosecute new criminal charges in order to allege the conduct as a violation of probation. See, e.g., State v. Tuthill, 545 So.2d 850, 851 (Fla.1989) ; Swilley, 781 So.2d at 460. Clearly, if the legislature had intended to add additional procedural or proof requirements to the......