Torres v. State, 87-1554
| Decision Date | 13 January 1988 |
| Docket Number | No. 87-1554,87-1554 |
| Citation | 517 So.2d 796,13 Fla. L. Weekly 194 |
| Parties | 13 Fla. L. Weekly 194 Ishmael TORRES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Thomas F. Ball, III, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Amy Lynn Diem, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant seeks review of the order of revocation of his community control and the sentence entered thereon. Appellant claims the trial court erred when it failed to grant his appointed counsel's request, at the preliminary revocation hearing, for a final hearing. We agree and reverse and remand this matter for a final revocation hearing. The mere appointment of counsel does not satisfy the requirements of State v. Hicks, 478 So.2d 22 (Fla.1985), where the trial court fails to give that counsel an opportunity to counsel his client and an opportunity for a hearing.
Appellant also raises an error regarding his sentence of three years imprisonment. When the appellant was sentenced on the original charge of grand theft the recommended guidelines range was any non-state prison sanction. Appellant received two years probation with adjudication withheld. He violated that sentence, a new scoresheet was prepared adding the violation of probation to the calculations and he received a new sentence of two years community control followed by two years probation. The new sentence was within the guidelines sentence with the one cell increase allowed under Rule 3.701(d)(14), Florida Rules of Criminal Procedure, which provides that a sentence imposed after revocation of probation or community control may be increased to the next higher cell without requiring a reason for departure. Appellant then violated the community control sentence and was sentenced to three years imprisonment.
Appellant argues that the trial court erroneously departed from the guidelines without giving written reasons when it sentenced him to three years imprisonment because the sentence resulted in an increase of two cells from the recommended sentence for the original grand theft offense. The state responds that the sentence imposed was only a one cell increase from the violation of probation offense range and since that was the sentence appellant was guilty of violating the trial court had to use that range as its starting point rather than the range for the original offense. The state also points out that increasing appellant's sentence one cell from the original offense range would have resulted in no aggravation at all thus the court was justified in not using that range when it determined appellant's new sentence.
The issue for our resolution is whether the trial court must use the original offense range as its starting point when applying the one cell increase allowed under Rule 3.701(d)(14) for violation of probation or community control. We believe this issue is resolved by our...
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Hosmer v. State, BQ-465
...imposed for violation of community control was reversed and remanded for resentencing within the guidelines. In Torres v. State, 517 So.2d 796 (Fla. 4th DCA 1988), as in the instant case, appellant's recommended guidelines range on the original charge was any nonstate prison sanction. Torre......
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Tyler v. State, 97-1898
...to respond in any manner to the revocation charges." Hicks, 478 So.2d at 23 (Fla.1985) (emphasis added). See also Torres v. State, 517 So.2d 796 (Fla. 4th DCA 1988) (applying Hicks to revocation of community control hearing); White v. State, 606 So.2d 1265, 1267 (Fla. 1st DCA 1992) (revocat......
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McGlothlin v. State, 97-2096
...is imposed." Id. at 73 (citation omitted). See Bryant v. State, 513 So.2d 1362 (Fla. 5th DCA 1987). See also Torres v. State, 517 So.2d 796, 797-98 (Fla. 4th DCA 1988); Lockett v. State, 516 So.2d 46, 47 (Fla. 4th DCA Here, the only reason stated by the trial court for appellant's departure......
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Denegal v. State
...as its starting point when applying the permitted one cell increase. The Fourth District addressed this question in Torres v. State, 517 So.2d 796 (Fla. 4th DCA 1988). Our sister court observed that Rule 3.701(d)(14) clearly requires that "sentences imposed after revocation of probation or ......