Tuthill v. State, 86-847

• Decision Date: 15 September 1987
• Docket Number: No. 86-847,86-847
• Parties: 12 Fla. L. Weekly 2250 Harold TUTHILL, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1300

518 So.2d 1300 12 Fla. L. Weekly 2250 Harold TUTHILL, Appellant,
v.
The STATE of Florida, Appellee. No. 86-847. District Court of Appeal of Florida,
Third District. Sept. 15, 1987.
Rehearing Denied Feb. 15, 1988.

Page 1301

Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard E. Doran and Ralph Barreira, Asst. Attys. Gen., for appellee.

Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.

BASKIN, Judge.

In 1983, following entry of his nolo contendere plea to the charge of committing a lewd and lascivious act in the presence of a child, appellant Harold Tuthill was sentenced to a four-year term of probation. In 1984, the state filed a new information and an affidavit alleging that Tuthill violated his probation by committing a lewd and lascivious act upon a minor. At the conclusion of a probation violation hearing, the trial court revoked probation and sentenced Tuthill to serve fifteen years in the state penitentiary. The state then entered a nolle prossequi of the information charging the substantive offense that formed the basis of the probation violation. In the ensuing appeal, this court ruled that Tuthill "was not afforded an opportunity to be heard on the question of the severity of the sentence to be imposed." Tuthill v. State, 478 So.2d 409, 409 (Fla. 3d DCA 1985), review denied, 484 So.2d 10 (Fla.1986). Although we affirmed the trial court's revocation of probation, we remanded the cause to the trial court for resentencing. Tuthill.

On remand, the trial judge recused himself from the case. A successor judge conducted a hearing and imposed sentence. Deviating from guidelines' recommendations, the trial court sentenced Tuthill to a term of fifteen-years' imprisonment. The trial court's reasons for deviating from the guidelines recommendations were:

1. That the defendant was placed on probation in case number 83-6740 for Lewd and Lascivious Act [sic] Upon a Child.

2. That the defendant was found to be in violation of his probation before Judge Mastos and came before this Court for sentencing following the recusal of Judge Mastos.

3. That the substantive offense which was the basis of the probation violation was substantially similar to the charge on which the defendant was placed on probation.

4. That the new offense occurred within six months of the defendant being placed on probation.

Tuthill raises two points on appeal. First, he contends that the trial court committed reversible error in basing its departure from the recommended sentence on an offense which did not result in conviction. Second, Tuthill maintains that he is entitled to withdraw his election to be sentenced under the guidelines because changes in the law have deprived him of the right to appellate review of his sentence. We agree and reverse.

Our disposition of this cause turns on the issue of Tuthill's entitlement to withdraw his election to be sentenced under the guidelines. When Tuthill chose to be sentenced under the guidelines and forfeited his right to parole, he was entitled to appellate review of his sentence. Subsequent to that election, however, the legislature amended the statute governing guidelines sentences, § 921.001(5), Fla.Stat. (Supp.1986), and eliminated appellate review of the extent of the trial court's departure from sentencing guidelines. Recently, however, in Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), the Supreme Court of the United

Page 1302

States declared modifications in sentencing guidelines to be substantive changes subject to ex post facto doctrine. "[A] change in the law that alters a substantial right can be ex post facto 'even if the statute takes a seemingly procedural form.' " Miller, 482 U.S. at ----, 107 S.Ct. at 2453 (quoting Weaver v. Graham, 450 U.S. 24, 29 n. 12, 101 S.Ct. 960, 964 n. 12, 67 L.Ed.2d 17, 23 n. 12 (1981)). Under Miller 's pronouncement, Tuthill is entitled either to withdraw his election or to rely on the guidelines law in effect when he made his election: legislative modifications limiting the extent of appellate review contradict the voluntariness of his...