Townsend v. State, 84-1147

• Decision Date: 09 November 1984
• Docket Number: No. 84-1147,84-1147
• Citation: 458 So.2d 856
• Parties: Terry TOWNSEND, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 856

458 So.2d 856

Terry TOWNSEND, Appellant, v. STATE of Florida, Appellee.

No. 84-1147.

District Court of Appeal of Florida,

Second District.

Nov. 9, 1984.

Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

DANAHY, Judge.

This is another sentencing guidelines case. Defendant, Terry Townsend, appeals from the revocation of his probation and resulting prison sentences, contending that the trial court erred in departing from the sentencing guidelines without stating clear and convincing reasons for the departure. We disagree and affirm.

Defendant pleaded nolo contendere on April 13, 1983, to attempted robbery and was placed on probation for four years. Subsequently, the state filed an affidavit alleging defendant violated his probation by failure to comply with: "Condition (5) in that on 1/11/84 he was arrested by the Polk County Sheriff's Department for Grand Theft, and on 1/20/84 he was arrested by the Lakeland Police Department for I--Robbery--Armed with Deadly Weapon and II--Possession of Firearm During Commission of Felony."

On April 17, 1984, defendant pleaded guilty to the charges of grand theft and armed robbery, and admitted the violation of probation. He elected to be sentenced under the new sentencing guidelines pursuant to section 921.001(4)(a), Florida Statutes (1983). See also In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

At the sentencing hearing defense counsel and the probation officer who prepared the presentence investigation report recommended that defendant be sentenced under the Youthful Offender Statute. The recommended sentence under the guidelines was a range of five and one-half to seven years, with a presumptive sentence of six years. The prosecutor requested a seven-year sentence. The court revoked defendant's probation, adjudicated him guilty of all four charges, sentenced him to concurrent terms of five years' imprisonment for attempted robbery, five years' imprisonment for grand theft, and nine years' imprisonment for each armed robbery. The court then stated that it was raising defendant's sentence "one block" because defendant was on probation and that the court did not consider that this was going outside the guidelines. However, the court went on to say that even if the sentence was considered to be outside the guidelines, it considered that the defendant's criminal history was a sufficient reason for the departure. This timely appeal followed.

Defendant argues that because his recommended guideline sentence took both his probationary status and prior adult criminal history into account, those factors cannot provide clear and convincing reasons for departure. He is incorrect. A violation of a substantive condition of probation can serve as a reason for a trial court to exceed the presumptive sentence range established in the guidelines, provided Florida Rule of Criminal Procedure 3.701(d)(11) is followed. Hernandez v. State, 457 So.2d 1155 (Fla. 2d DCA 1984); Tackett v. State, 458 So.2d 368 (Fla. 2d DCA 1984); Klapp v. State, 456 So.2d 970 (Fla. 2d DCA 1984). See also Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984) (probation violations for possession of marijuana and driving while under the influence of alcoholic beverages which were not contested by defendant justified departure); Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984) (failure on probation, drinking problem, threat to society justified departure). Accord Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984) (violation or past abuse of or lack of amenability to probation justified departure); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984) (violation of probation may serve a legitimate reason for exceeding guideline sentence provided reason given in writing); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984) (violation of probation may serve as legitimate reason to exceed presumptive sentence where defendant had already received the maximum sentences provided under the guidelines before he violated probation); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984) (violation of probation may justify departure provided basis is stated in writing). The violations alleged here were substantial, not contested by defendant and, therefore, provided a proper basis for sentencing outside the area...