STEPHON LEROY THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephon Leroy Thomas appealed his conviction for violating probation on two counts, challenging both the sufficiency of notice regarding the charges and his sentences. The court affirmed the probation violation convictions but reversed the sentences as impermissibly exceeding sentencing guideline ranges.
The court held that Thomas had sufficient notice of the nature of the charges and therefore affirmed the probation violation convictions. However, the court reversed the sentences because they exceeded the permissible guideline range plus one cell increase, and remanded for resentencing.
[1] A defendant receives sufficient notice of the nature of charges in an affidavit of violation of probation when the affidavit alleges a crime and the defendant is convicte…
[2] A sentence imposed after a revocation of probation may be increased by one cell within the sentencing guidelines without requiring written reasons for departure.
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Join FLexlaw to unlock all legal intelligence“a one cell increase is permitted, without requiring written reasons for departure, in sentences imposed after a revocation of probation”
Establishes the limited permissible departure from sentencing guidelines in probation violation cases
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Join FLexlaw to unlock all legal intelligenceThomas was found guilty of violating two probations. The affidavit of violation alleged that he resisted arrest with violence, but he was actually con…
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POLEN, Judge.
Appellant, Stephon Leroy Thomas, appeals a final judgment finding him guilty of violating two probations, and the sentences resulting from the violations. We find no merit in Thomas’ argument that he should not have been found guilty of violating his probation because the affidavit of violation alleged that he resisted arrest with violence, and he was actually convicted of resisting arrest without violence. As we have concluded that Thomas had sufficient notice of the nature of the charges in the affidavit of violation of probation, we affirm the judgment below. See Hines v. State, 358 So. 2d 183 (Fla.1978); and Freiheit v. State, 458 So. 2d 1172 (Fla. 4th DCA 1984).
However, we do find that by sentencing Thomas to consecutive twelve year terms on each violation of probation, the lower court impermissibly exceeded the guideline range for a violation of probation. In accordance with Florida Rule of Criminal Procedure 3.701(d)(14), a one cell increase is permitted, without requiring written reasons for departure, in sentences imposed after a revocation of probation. See Torres v. State, 517 So. 2d 796 (Fla. 4th DCA 1988) (holding that it was error to use the violation of probation range rather than the original offense range in determining the appellant’s sentence, and reversing the sentence imposed for failure to include clear and convincing reasons for the departure from the guideline sentence).
Thus, in accordance with our prior opinion in Torres, and the Florida Rules of Criminal Procedure, Thomas’ sentence cannot exceed the guideline range plus a one cell bump which is a permissible range of nine (9) to twenty-two (22) years, and a recommended range of twelve (12) to seventeen (17) years, We reverse and remand for resentencing in accordance with these guidelines,
HERSEY and STEVENSON, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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RAY v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003)…ged in writing violates due process and is fundamental error). This case is dissimilar from the situation where an affidavit alleges a particular offense, but the probationer is actually convicted of a lesser included offense. See Thomas v. State, 634 So. 2d 276 (Fla. 4th DCA 1994) (holding that an affidavit of violation alleging that probationer resisted arrest with violence, when he was actually convicted of resisting arrest without violence, did not preclude a finding that he was guilty of violating his…
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N.L. v. State, 825 So. 2d 509 (Fla. 1st DCA 2002)…141 (“[I]t is improper to find a probationer has violated a condition of his probation that he has not been charged with violating.”). This is not a case where evidence at a revocation hearing proved a lesser included offense. Cf. Thomas v. State, 634 So. 2d 276, 277 (Fla. 4th DCA 1994) (affirming appellant’s revocation of probation where the affidavit of violation alleged that he resisted arrest with violence, but he was actually convicted of resisting arrest without violence); Evans v. State, 409 So. 2d 1…
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McCloud v. State, 249 So. 3d 739 (Fla. 1st DCA 2018)
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
- Hines v. State, 358 So. 2d 183 (Fla. 1978)
- Freiheit v. State, 458 So. 2d 1172 (Fla. 4th DCA 1984)
- Alexander Battery Sales, Inc. v. Weck, 517 So. 2d 796 (Fla. 4th DCA 1988)