CEPHUS E. TORREY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cephus Torrey appealed his probation revocation and sentencing for burglary and grand theft, challenging both the revocation and the sentence imposed above sentencing guidelines. The court affirmed the probation revocation and the sentence on the merits but found technical error requiring remand due to the trial court's failure to provide a written statement of reasons for departure as required by Florida Rule of Criminal Procedure 3.701(d)(11).
The court held that the trial court properly revoked probation and had sound and adequate reasons for departing from the sentencing guidelines based on a second probation violation and failure to report. However, the trial court violated Rule 3.701(d)(11) by failing to provide a separate written document stating reasons for departure, instead relying only on oral transcription.
[1] Sufficient evidence of probation violations, including a second violation and failure to report to a probation officer within two days, can constitute clear and convincin…
[2] The transcription of orally stated reasons for departure from sentencing guidelines does not satisfy the requirement for a written statement of reasons.
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Join FLexlaw to unlock all legal intelligence“A second probation violation and the timing of a probation violation have been held to constitute clear and convincing reasons for departure.”
Establishes the legal standard for justifying departure from sentencing guidelines in cases involving repeated probation violations
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Join FLexlaw to unlock all legal intelligenceTorrey was on probation when he committed offenses of burglary of a conveyance and grand theft. He violated his probation for at least the second time…
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FRANK, Judge.
After revocation of his probation, Cephus Torrey was sentenced to concurrent terms of three years and five years for the offenses of burglary of a conveyance and grand theft. The sentence imposed was beyond the guidelines’ recommended range,.and the appellant contends that the court erred both in revoking his probation and in exceeding the guidelines. We disagree but find technical error in the trial court’s failure to provide a written statement of reasons for departure as is required by Rule 3.701(d)(ll) of the Florida Rules of Criminal Procedure.
The record reveals sufficient evidence to warrant the finding that the appel lant had violated his probation. Ivey v. State, 308 So. 2d 565 (Fla. 2d DCA 1975). The trial court was further justified in finding that the appellant had violated probation for the second time and that after being told to do so, he failed to report to his probation officer within two days. A second probation violation and the timing of a probation violation have been held to constitute clear and convincing reasons for departure. Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985); Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985). Departure in the instant matter was based upon sound and adequate reasons.
At the time of the appellant’s sentencing hearing the supreme court had not published its decision in State v. Jackson, 478 So. 2d 1054 (Fla.1985) in which it held that the transcription of orally stated reasons for departure does not satisfy Rule 3.701(d)(ll) of the Florida Rules of Criminal Procedure.
Although the trial court’s inclusion of the departure grounds in the transcript was at the time in keeping with this court’s view of Rule 3.701(d)(ll), expressed for example in Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984), but which subsequently became technically deficient under Jackson, we affirm the appellant’s conviction but reverse the sentence and remand with the following directions: If upon remand the trial court adheres to the reasons relied upon for departure as they appear in the sentencing transcript and the identical sentence is imposed upon the appellant, the entry of a resentencing order restating in a separate written document the transcribed reasons may occur without the appellant’s presence.
SCHEB, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Alphonso McNEALY v. State, 502 So. 2d 54 (Fla. 2d DCA 1987)…Fla. 2d DCA 1984). 7. Appellant has repeatedly violated his probation and was on probation when the present offense occurred. A second probation violation and the timing of a probation violation may be a valid reason for departure. Torrey v. State, 482 So. 2d 552 (Fla. 2d DCA 1986). 8. There is no hope of rehabilitating appellant and society has a right to be protected from him. We have held that a trial court may properly depart from the guidelines where the defendant demonstrates an inability to be rehabi…
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Desmond H. Franks v. State, 502 So. 2d 1369 (Fla. 2d DCA 1987)…e in this case. Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986); White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984); Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984); see also Torrey v. State, 482 So. 2d 552 (Fla. 2d DCA 1986); Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985). We do find that the second reason given by the trial court was improper. Assuming the reason would be valid given appropriate record support, see Burgess v. State, 491 So. 2d…
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Simmons v. State, 496 So. 2d 911 (Fla. 2d DCA 1986)…te contends that this reason for departure is valid given that appellant has twice violated his probation. While it is true that a second probation violation is a valid reason for departure, Adams v. State, 490 So. 2d 53 (Fla.1986); Torrey v. State, 482 So. 2d 552 (Fla. 2d DCA 1986), the state has not demonstrated beyond a reasonable doubt that this was the reason for the trial court’s departure in the present case. See State v. Mischler, 488 So. 2d 523 (Fla.1986). The trial court’s oral pronouncement, as wel…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Ivey v. State, 308 So. 2d 565 (Fla. 2d DCA 1975)
- Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985)
- Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985)