HERIBERTO RODRIGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the sentences imposed on the defendant after his probation was revoked. The court held that departures from sentencing guidelines are permissible even after a probation revocation and that the circumstances leading to the revocation can be considered for sentencing departures.
Yes, departures from sentencing guidelines are permissible following a probation revocation. Yes, the circumstances forming the basis for probation revocation can be considered as a basis for departing from sentencing guidelines.
[1] Sentences imposed following a probation revocation are not precluded from departing from sentencing guidelines.
[2] A trial court may consider the circumstances forming the basis for a probation revocation as a basis for departing from sentencing guidelines.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“He contends that no departures from the sentencing guidelines are permissible where, as here, the sentences are imposed following an order of probation revocation.”
This quote states the defendant's primary argument on appeal.
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Join FLexlaw to unlock all legal intelligenceThe defendant's probation was revoked, and he received sentences that departed from the sentencing guidelines. He argued that such departures were imp…
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PER CURIAM.
The defendant Heriberto Rodriguez appeals from certain sentences imposed outside the sentencing guidelines. See Fla. R.Crim.P. 3.701. He contends that no departures from the sentencing guidelines are permissible where, as here, the sentences are imposed following an order of probation revocation. We must reject this claim based on a well-settled line of authority in this state. Whitlock v. State, 458 So. 2d 888 (Fla. 5th DCA 1984); Kimble v. State, 458 So. 2d 86 (Fla. 5th DCA 1984); Neely v. State, 453 So. 2d 129 (Fla. 5th DCA 1984); Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984).
He further contends that, even if the trial court was permitted to deviate from the sentencing guidelines, it did so impermissibly in this case because it considered the circumstances forming the basis for the probation revocation herein, to wit: an auto theft. We cannot agree. Although former Fla.R.Crim.P. 3.701(d)(11)— applicable here, but since amended — precludes a trial court from considering factors relating to the “instant offense,” plainly the instant offense on which a probation revocation sentence is imposed is the offense for which the defendant was originally found guilty and placed on probation. § 948.06(1), Fla.Stat. (1984) (“If probation ... is revoked, the court shall adjudge the probationer ... guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation_”).
Indeed, the sentences in this case were, in fact, imposed on the original offenses for which the defendant had been placed on probation. The circumstances forming the basis for revoking the defendant’s probation and imposing sentence did not constitute, as urged, a separate offense on which a separate sentence could be imposed, and, accordingly, the trial court properly considered such circumstances as a basis for departing from the sentencing guidelines in this cause.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985)…rlier crime for which probation had been imposed; here, the aggravated battery; and (b) that the defendant was on probation when he committed the second substantive crime in sentencing for that latter offense; here, the burglary. Rodriguez v. State, 464 So. 2d 638 (Fla. 3d DCA 1985) and cases cited. Klapp v. State, 456 So. 2d 970 (Fla. 2d DCA 1984); Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1985); Bogan v. State, 454 So. 2d 686 (Fla. 1st DCA 1984). Affirmed. . The appellant does not claim, and hence we d…
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REE v. State, 512 So. 2d 1085 (Fla. 4th DCA 1987)…hological and emotional trauma of the sexual battery victims) was valid, as constituting consideration of the circumstances forming the basis for the probation revocation. See Isgette v. State, 494 So. 2d 534 (Fla. 4th DCA 1986); Rodriguez v. State, 464 So. 2d 638 (Fla. 3d DCA 1985). The second reason (commission of crimes within eight months of being placed on two years’ probation) is also valid. See Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986). The state concedes, however, that the third reason was in…
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Isgette v. State, 494 So. 2d 534 (Fla. 4th DCA 1986)…be properly considered by the trial court because it relates not to the offense for which he was sentenced — the grand theft committed in 1982 —but to the 1985 offense on which his revocation of probation was based. The case of Rodriquez v. State, 464 So. 2d 638 (Fla. 3d DCA 1985), which is directly on point, is contrary to appellant’s position. In Rodriguez the defendant was convicted and placed on probation. His probation was later revoked when he committed auto theft. The court found the trial court prop…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Glynn Addison, Jr. v. State, 452 So. 2d 955 (Fla. 2d DCA 1984)
- Jackson Leroy Neely v. State, 453 So. 2d 129 (Fla. 5th DCA 1984)
- Whitlock v. State, 458 So. 2d 888 (Fla. 5th DCA 1984)
- Wendall J. Chatman v. State, 458 So. 2d 86 (Fla. 5th DCA 1984)
- Kimble v. State, 458 So. 2d 86 (Fla. 5th DCA 1984)