Williams v. State
| Citation | 581 So.2d 144 |
| Decision Date | 30 May 1991 |
| Docket Number | No. 76609,76609 |
| Parties | Randy WILLIAMS, Petitioner, v. STATE of Florida, Respondent. 581 So.2d 144, 16 Fla. L. Week. S397 |
| Court | United States State Supreme Court of Florida |
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
Robert A. Butterworth, Atty. Gen., and Virlindia Doss, Asst. Atty. Gen., Tallahassee, for respondent.
We review Williams v. State, 566 So.2d 299 (Fla. 1st DCA 1990), in which the court certified the following question as being of great public importance:
AFTER A TRIAL JUDGE WITHHOLDS IMPOSITION OF SENTENCE AND PLACES A DEFENDANT ON PROBATION, AND THE DEFENDANT SUBSEQUENTLY VIOLATES THAT PROBATION, MAY THE JUDGE, UPON SENTENCING THE DEFENDANT FOR THE ORIGINAL OFFENSE, DEPART FROM THE PRESUMPTIVE GUIDELINES RANGE AND THE ONE-CELL INCREASE FOR VIOLATION OF PROBATION, AND IMPOSE AN APPROPRIATE SENTENCE WITHIN THE STATUTORY LIMIT BASED ON A REASON THAT WOULD HAVE SUPPORTED DEPARTURE HAD THE JUDGE INITIALLY SENTENCED THE DEFENDANT RATHER THAN PLACING HIM ON PROBATION?
Id. at 302-03. Article V, section 3(b)(4) of the Florida Constitution provides us with jurisdiction.
Williams was convicted of possession of cocaine with intent to sell. The court withheld sentencing and placed him on seven years' probation. Upon violation of several conditions of probation, the court sentenced Williams to seven years' imprisonment, which was in excess of the one-cell increase authorized by the sentencing guidelines.
The First District Court of Appeal concluded that the first of the two reasons given for departure was invalid. 1 However, the court upheld the second stated reason for departure, which read as follows:
2. The Defendant's prior criminal history includes fifteen (15) misdemeanor convictions and one (1) prior third degree felony conviction. There is an escalating pattern to this criminal conduct as shown by his having committed several misdemeanor offenses which were followed by a third degree felony conviction (Grand Theft in the second degree) and then his conviction of the instant offense which is a felony of the second degree.
Williams, 566 So.2d at 301. The court affirmed the departure sentence, but because of its concern over certain language in Ree v. State, 565 So.2d 1329 (Fla.1990), modified, State v. Lyles, 576 So.2d 706 (Fla.1991), and Lambert v. State, 545 So.2d 838 (Fla.1989), posed the certified question.
In Lambert the Court held that factors related to violation of probation or community control cannot be used as grounds for departure. Thereafter, in Ree we characterized our decision in Lambert as holding that "any departure sentence for probation violation is impermissible if it exceeds the one-cell increase permitted by the sentencing guidelines." Ree, 565 So.2d at 1331. Pointing out that this statement went beyond the facts of Lambert, the court below said that "we interpret Lambert as applying only to cases where the factors on which the departure sentence is based relate to the acts or episode constituting the violation of probation or community control." Williams, 566 So.2d at 301.
We agree with this analysis.
In both Lambert and Ree, the reasons given for departure pertained to the defendant's conduct that led to the violation of probation. Even where such conduct had led to a conviction, we pointed out that to permit this to constitute a reason for departure would result in double dipping. Neither case addressed the propriety of departure for reasons that would have supported departure had the judge initially sentenced the defendant rather than placing him on probation.
Williams argues that it is inconsistent to permit a departure based on reasons which existed at the time he was placed on probation, because in placing him on probation the court necessarily had to find that he was not likely again to engage in a criminal course of conduct. See Sec. 948.01(3), Fla.Stat. (1987). On the other hand, section 948.06(1), Florida Statutes (1987), provides that upon revoking a defendant's probation the court is authorized to impose any sentence that it might have originally imposed before placing a defendant on probation. Moreover, we believe that the position advocated by Williams could have a deterrent effect on probation. A judge might be less willing to give the defendant another chance by putting him on probation if he knew that the preexisting reasons for departure could not be considered in the event the probation was violated. Thus, we hold that the court could properly impose a departure...
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King v. State, 93-1261
...sentence is based relate to the acts or episode constituting the violation of probation or community control." Williams v. State, 581 So.2d 144, 145-146 (Fla.1991) (quoting Williams v. State, 566 So.2d 299, 301 (Fla. 1st DCA 1990). However, if the reasons for departure existed when the judg......
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