LAURENT RAYMOND UTSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1986-01-30
No. BF-243
ERVIN and WIGGINTON, JJ., concur.
483 So. 2d 60 Florida District Court of Appeal, First District (1986) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

The court held that an affirmative election on the record is required for a defendant to be sentenced under the guidelines, and mere silence is insufficient.

Facts & Procedural History

Utsey was placed on probation before the effective date of the sentencing guidelines and was entitled to elect guideline sentencing upon revocation. T…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.

Topics
Scoresheet Preparation Affirmative Election For Sentencing Probation Revocation Sentencing Guidelines

Explore caselaw by topic → Browse Scoresheet Preparation cases and more on FLexlaw

Opinion of the Court
McCORD, GUYTE P„ Jr. (Ret.), Associate Judge.

McCORD, GUYTE P„ Jr. (Ret.), Associate Judge.

Utsey appeals from a sentence imposed under the guidelines, following the revocation of his probation, on the grounds that he never affirmatively elected to be sentenced under the guidelines. We reverse.

Utsey was placed on probation prior to 1 October 1983, the date the sentencing guidelines became effective, and therefore was entitled to elect to be sentenced under the guidelines upon revocation of his probation. Section 921.001(4)(a), Florida Statutes (1983); Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984). The only relevant testimony concerning the method of sentencing in the present case is as follows:

[Defense Counsel] Let me object to the sentencing methods. I haven’t received any guidelines points and certainly he asserts his right to be sentenced. He hasn’t had a chance to refute that, but I’ll note it for the record.

In the recent case of Pentaude v. State, 478 So. 2d 1147 (Fla. 1st DCA 1985), this court held that there must be an “affirmative election” to be sentenced under the guidelines, clearly made on the record. The same result was reached in Jackson v. State, 478 So. 2d 515 (Fla. 2d DCA 1985), wherein the court held that “mere silence cannot be construed as an affirmative selection.”

Further, as to the sentencing procedure, the trial judge used a guideline score-sheet prepared for the defendant on a Du-val County charge before another judge. The scoresheet should have been prepared for the defendant for the case then before the court in Clay County. Fla.R.Crim.P. 3.701(d)(1).

Reversed and remanded for resentencing.

ERVIN and WIGGINTON, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Austin v. State, 500 So. 2d 262 (Fla. 1st DCA 1986)
    …disclose that Austin made such an affirmative election. However, case law has clearly established that the record must reflect an affirmative selection by the defendant before the trial court can sentence pursuant to the guidelines. Utsey v. State, 483 So. 2d 60 (Fla. 1st DCA 1986). Neither the fact that a guidelines scoresheet was prepared, nor the fact that Austin failed to object to the guidelines sentencing, vitiates the requirement of an affirmative selection. Lloyd v. State, 473 So. 2d 765 (Fla. 1st D…
  • Terrell v. State, 486 So. 2d 85 (Fla. 1st DCA 1986)
    …47 (Fla. 1st DCA 1985); Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985). Mere silence or a discussion of the presumptive sentence does not constitute an affirmative selection. Brinson v. State, 482 So. 2d 347 (Fla. 1st DCA 1986); Utsey v. State, 483 So. 2d 60 (Fla. 1st DCA 1986); Jackson v. State, 478 So. 2d 515 (Fla. 2nd DCA 1985). Counsel for the State has argued a distinction between the failure to object to a departure from guideline sentencing and the failure to object to guideline sentencing per s…
  • Bryant v. State, 502 So. 2d 516 (Fla. 1st DCA 1987)
    …ted in a discussion of the guidelines scoresheet, this court has found that neither the defendant’s silence nor his attorney’s participation in the guidelines sentence determination is sufficient to indicate an affirmative selection. Utsey v. State, 483 So. 2d 60 (Fla. 1st DCA 1986). Appellant argues also that if the conviction upon which his revocation of probation is based is reversed on appeal, his revocation of probation must be reversed as well. Appellant’s conviction in the related case has not yet b…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw