Carroll v. State

District Court of Appeal of Florida

Carroll v. State

454 So. 2d 791, 9 Fla. L. Weekly 1872, 1984 Fla. App. LEXIS 14928

CourtDistrict Court of Appeal of Florida

DecidedAugust 30, 1984

DocketNo. 84-202

StatusPublished

Cited by2 cases

This text of 454 So. 2d 791 (Carroll v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carroll v. State, 454 So. 2d 791, 9 Fla. L. Weekly 1872, 1984 Fla. App. LEXIS 14928 (Fla. Ct. App. 1984).

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Opinion

ORFINGER, Judge.

Appellant pleaded guilty to violation of probation, and elected to be sentenced under the new sentencing guidelines. The trial court rejected this request because the crime for which appellant had originally been placed on probation had occurred pri- or to the effective date of the guidelines. We remand for resentencing.

The State’s contention that appellant may not appeal because he pleaded guilty is not well taken. Á defendant may appeal a sentence which he contends is not in conformity with the guidelines, even after the entry of a guilty plea to the substantive charge. Key v. State, 452 So.2d 1147 (Fla. 5th DCA 1984).

On the merits, a defendant who was placed on probation prior to the effective date of the new sentencing guidelines and whose probation is revoked after they became effective may elect to be sentenced under the guidelines. Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984). This follows the supreme court’s mandate that the guidelines apply to sentences imposed after the effective date of the rule for applicable crimes committed prior thereto, where affirmatively selected by the defendant. In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 849 (Fla. 1983). Because defendant so elected here, he was entitled to be sentenced in accordance with the guidelines, although the trial court may determine, for clear and convincing reasons, that a departure from the guidelines is warranted. See, e.g., Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).

The sentence is vacated and the case is remanded to the trial court for resentenc-ing.

REMANDED FOR RESENTENCING.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

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ORFINGER, Judge.

Appellant pleaded guilty to violation of probation, and elected to be sentenced under the new sentencing guidelines. The trial court rejected this request because the crime for which appellant had originally been placed on probation had occurred pri- or to the effective date of the guidelines. We remand for resentencing.

The State’s contention that appellant may not appeal because he pleaded guilty is not well taken. Á defendant may appeal a sentence which he contends is not in conformity with the guidelines, even after the entry of a guilty plea to the substantive charge. Key v. State, 452 So.2d 1147 (Fla. 5th DCA 1984).

On the merits, a defendant who was placed on probation prior to the effective date of the new sentencing guidelines and whose probation is revoked after they became effective may elect to be sentenced under the guidelines. Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984). This follows the supreme court’s mandate that the guidelines apply to sentences imposed after the effective date of the rule for applicable crimes committed prior thereto, where affirmatively selected by the defendant. In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 849 (Fla. 1983). Because defendant so elected here, he was entitled to be sentenced in accordance with the guidelines, although the trial court may determine, for clear and convincing reasons, that a departure from the guidelines is warranted. See, e.g., Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).

The sentence is vacated and the case is remanded to the trial court for resentenc-ing.

REMANDED FOR RESENTENCING.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

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454 So. 2d 791, 9 Fla. L. Weekly 1872, 1984 Fla. App. LEXIS 14928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-state-fladistctapp-1984.

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