Daniels v. State

870 So. 2d 250, 2004 WL 591027
District Court of Appeal of Florida·Decided March 26, 2004·No. 2D02-5762·Published·Cited by 2 cases

Opinion

870 So.2d 250 (2004)

Roosevelt DANIELS, Appellant,
v.
STATE of Florida, Appellee.

No. 2D02-5762.

District Court of Appeal of Florida, Second District.

March 26, 2004.

*251 James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

In this appeal, we are asked to determine whether a plea agreement for a probationary split sentence, in which the prison term is an upward departure from the guidelines, is a valid reason to impose an upward departure sentence upon revocation of probation when the original plea agreement did not include an express agreement as to sentencing upon revocation. We hold that the requirements of the guidelines compel the conclusion that an upward departure sentence is not authorized under these circumstances. This conclusion requires that we reverse the portion of the sentence resulting in actual prison time imposed on the appellant, Roosevelt Daniels, after the revocation of his probation because it was an illegal upward departure from the sentencing guidelines.

Facts and Procedural History

Daniels was originally charged with three counts of capital sexual battery and one count of lewd and lascivious activity with a minor. The date of the offenses was October 14, 1986. In January 1987, Daniels entered a negotiated plea of guilty to two counts of attempted capital sexual battery and two counts of lewd and lascivious activity with a minor. He was subsequently sentenced to thirty years' imprisonment on one count of attempted capital sexual battery (count one), followed by concurrent terms of fifteen years' probation *252 on the other three counts (counts two, three and four). This was an upward departure sentence under the sentencing guidelines in effect at that time. The guidelines scoresheet calculated the guidelines range at twelve to seventeen years. The only reason listed on the scoresheet for the departure referenced the plea negotiation.

With the benefit of gain-time, Daniels finished serving the thirty-year prison term imposed on count one in March 1999. Three years later, Daniels' probation officer filed an affidavit alleging that Daniels had violated his probation on counts two, three, and four by having unauthorized contact with a minor. After an evidentiary hearing, the trial court found that Daniels had violated his probation as charged and revoked his probation on counts two, three, and four.

The trial court sentenced Daniels to a term of thirty years' imprisonment on count two and fifteen years' imprisonment on counts three and four. The sentences were designated to run consecutively. The calculations on the scoresheet used for sentencing on the violation of probation were identical to the original scoresheet. The guidelines range was calculated at twelve to seventeen years, with seventeen to twenty-two years permitted by the one-cell probation violation bump.

Because all counts were scored on a single scoresheet, the trial court recognized that Daniels was entitled to credit for time served on count one as to the prison terms imposed upon revocation of probation for the other three counts. See Tripp v. State, 622 So.2d 941, 942 (Fla. 1993). Thus, against the total sixty years' imprisonment imposed on counts two, three, and four, the trial court granted Daniels credit of thirty years for time served on count one, which was expressed as a specific credit as to the thirty-year term imposed on count two.[1]See Hodgdon v. State, 789 So.2d 958, 963 (Fla.2001) (clarifying Tripp to hold that "a defendant who violates probation on multiple counts imposed consecutive to a prison term is entitled to credit for the time served on the prison term as to the entire sentence imposed on the probation violation"); see also State v. Witherspoon, 810 So.2d 871 (Fla.2002); Cook v. State, 645 So.2d 436 (Fla.1994). The result was an actual prison sentence of two consecutive fifteen-year terms.

The trial court also recognized that any sentence involving actual prison time would be an upward departure from the guidelines because Daniels had fully completed serving his initial upward departure sentence. As authority for the imposition of an upward departure from the sentencing guidelines, the trial court cited Williams v. State, 581 So.2d 144 (Fla.1991) (Williams I), and entered a written order stating its reason for the upward departure sentence as follows:

[D]ue to the fact that at the original sentencing on February 11, 1987, Defendant entered into an uncoerced negotiated plea agreement for an upward departure from the guidelines where Defendant agreed to plea [sic] to the stipulated lesser offenses for thirty (30) years Florida State Prison, because Defendant *253 was facing three life sentences with a twenty-five (25) year minimum mandatory.

Other than the terms of the original sentence, no other record of the terms of the original plea agreement was available to the trial court.

After the sentence was entered, Daniels' counsel filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied the motion.

Revocation of Probation

Daniels contends that the State failed to prove that he committed a willful and substantial violation of his probation. After a review of the record, we find that the evidence was sufficient to prove that Daniels committed a willful and substantial violation of his probation. Daniels' argument on this point does not warrant further discussion.

The Sentencing Issue

Computed on a single scoresheet, Daniels' original sentence consisted of a prison term of thirty years followed by three fifteen-year terms of probation, concurrent with each other but consecutive to the prison term. This original sentence was a "probationary split sentence," as defined by Poore v. State, 531 So.2d 161, 164 (Fla.1988), which consists of a prison term, none of which is suspended, followed by a term of probation. A probationary split sentence is distinguished from a "true split sentence," which consists of a total prison term with a portion of the term suspended and the defendant placed on probation for the suspended portion. Id.

It is well-settled that a negotiated plea is a valid reason to impose an initial upward departure prison sentence.[2]State v. Williams, 667 So.2d 191, 193 (Fla. 1996) (Williams II); Quarterman v. State, 527 So.2d 1380, 1382 (Fla.1988). The sentencing issue in this case presents a question of first impression: whether a plea agreement for a probationary split sentence, in which the prison term is an upward departure from the guidelines, is a valid reason to impose an upward departure sentence upon revocation of probation when the original plea agreement did not include an express agreement as to sentencing upon revocation. Daniels preserved this issue in his rule 3.800(a) motion, and our standard of review is de novo. See Wardlaw v. State, 832 So.2d 258, 259 (Fla. 2d DCA 2002).

A similar question has been answered in the context of a true split sentence.

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Daniels v. State, 870 So. 2d 250, 2004 WL 591027 (Fla. Ct. App. 2004).

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