Williams v. State, 87-01981

• Decision Date: 04 April 1990
• Docket Number: No. 87-01981,87-01981
• Citation: 559 So.2d 680
• Parties: 15 Fla. L. Weekly D912 Dennis WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 680

559 So.2d 680

15 Fla. L. Weekly D912

Dennis WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. 87-01981.

District Court of Appeal of Florida Second District.

April 4, 1990.

James Marion Moorman, Public Defender, and Megan Olson, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

EN BANC

HALL, Judge.

Dennis Williams appeals from his judgment and sentence for grand theft following revocation of his probation. He argues that the trial court erred in departing from the sentencing guidelines on the basis of factors relating to his probation violation.

In 1985, the appellant was originally placed on two-years' probation for grand theft, second degree. The record reflects that he violated probation in 1986 by failing to pay costs, by failing to perform community service, and by committing battery upon his wife. The court adjudicated him guilty of violating probation and restored him to probation for a three-year period. In 1987, the appellant was again charged with violation of probation upon being arrested for aggravated battery on his estranged wife and armed burglary of his wife's home. The trial court found the appellant to be in violation of probation and stated that the violations were sufficient "to revoke him and to disregard the guidelines since it's his third violation." The court sentenced the appellant to five years in prison, a departure from the presumptive guidelines range of community control, or twelve to thirty months' incarceration, including the one-cell increase for violation of probation.

The sentencing guidelines scoresheet shows the presumptive sentence to be any nonstate prison sanction and includes a notation, "3rd violation"; however, no written reasons for departure were given in the space provided. Further, in the section where the scoresheet preparer was to indicate whether a guidelines sentence or a departure sentence was imposed, the former was clearly marked.

Since it is unclear from the scoresheet on what grounds the trial court intended to rely in imposing a departure sentence, we must remand for entry of a corrected scoresheet indicating the trial court's intention to depart and a written order stating reasons for departure. In doing so, we note that although repeated violation of probation is a valid reason for departure, Adams v. State, 490 So.2d 53 (Fla.1986), departure for conduct underlying the violation of probation is not punishable by an extended prison term. Lambert v. State, 545 So.2d 838 (Fla.1989).

Accordingly, we affirm the trial court's order revoking the appellant's probation, but reverse and remand for proceedings consistent with this opinion.

However, in light of the recent decisions of Ree v. State, 14 F.L.W. 565, (Fla. Nov. 16, 1989), and Lambert v. State, 545 So.2d 838 (Fla.1989), we certify to the Florida Supreme Court the following question as being one of great public importance:

HAS THE SUPREME COURT IN REE V. STATE, 14 F.L.W. 565, (FLA. NOV. 16, 1989), AND LAMBERT V. STATE, 545 SO.2D 838 (FLA.1989), RECEDED FROM THE HOLDING IN ADAMS V. STATE, 490 SO.2D 53 (FLA.1986), IN WHICH IT FOUND THAT WHERE A DEFENDANT, PREVIOUSLY PLACED ON PROBATION, HAS REPEATEDLY VIOLATED THE TERMS OF HIS PROBATION AFTER HAVING HAD HIS PROBATION RESTORED, THAT A TRIAL COURT MAY USE THE MULTIPLE VIOLATIONS OF PROBATION AS A VALID REASON TO SUPPORT A DEPARTURE SENTENCE BEYOND THE ONE CELL BUMP FOR VIOLATION OF PROBATION UNDER SECTION 3.701(D)(14), FLORIDA STATUTES (1984)?

SCHEB, RYDER, DANAHY, FRANK, THREADGILL, PATTERSON and ALTENBERND, JJ., concur.

SCHOONOVER, J., concurs in part and dissents in part.

CAMPBELL, C.J., and LEHAN and PARKER, JJ., concur with SCHOONOVER, J.

SCHOONOVER, Judge, concurring in part and dissenting in part.

I agree that this matter must be reversed and remanded for resentencing. I also agree that the question set forth in the majority opinion should be certified as a question of great public importance. However, since I concur with our sister court's interpretation of Ree v. State, 14 F.L.W. 565, (Fla. Nov. 16, 1989), and Lambert...