DWAYNES MARRS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dwayne Marrs appealed his probation violation conviction and nine-year sentence. The appellate court affirmed the trial court's finding that Marrs violated his probation but reversed in part due to the trial court's erroneous assessment of victim injury points on the sentencing scoresheet.
The appellate court held that the trial court did not abuse its discretion in finding a probation violation and properly imposed a three-cell bump-up for multiple probation violations. However, the trial court erred in assessing twenty victim injury points on the 1999 scoresheet when no such points were assessed on the original 1994 scoresheet.
[1] A trial court's determination that a defendant willfully violated probation is a question of fact, reversible only for an abuse of discretion.
[2] A trial court may impose sentencing guideline score sheet bump-ups for all prior violations of probation or community control, even if not immediately assessed after each…
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Join FLexlaw to unlock all legal intelligence“Whether appellant willfully or intentionally violated a condition of his probation is a question of fact; an appellate court may reverse only where it finds an abuse of discretion in the trial court's factual determination.”
Establishes the standard of review for factual findings regarding probation violations.
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Join FLexlaw to unlock all legal intelligenceIn August 1994, Marrs pled guilty to lewd conduct in the presence of a child and lewd assault, receiving five years of probation. He subsequently viol…
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PER CURIAM.
In August, 1994, appellant pled guilty to lewd conduct in the presence of a child and lewd assault. He was placed on five years of probation with special conditions.
In November, 1994, appellant pled guilty to violating his probation. He was placed on eighteen months of community control followed by three years of probation.
In November, 1995, appellant pled guilty to violating his community control. He was placed on five years of probation, with one year of community control II as a special condition of probation.
On April 30, 1999, an affidavit of violation of probation was filed. After a final violation of probation hearing, the trial court found that appellant had willfully violated his probation “by being alone, unsupervised with his 12-year-old daughter.”
On November 24, 1999, the trial judge sentenced appellant to two concurrent nine year prison sentences, with 497 days credit for time served. The sentencing guidelines scoresheet upon which the sentence was based provided for a three grid bump up because the case involved a third violation of probation. Additionally, while the scoresheet prepared at the time of the August, 1994 plea conference did not assess points for victim injury, the November, 1999 scoresheet indicated twenty points for victim injury.
We find no error in the trial court’s determination that appellant violated his probation. See Glee v. State, 731 So. 2d 759, 760 (Fla. 4th DCA 1999); Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992). Whether appellant willfully or intentionally violated a condition of his probation is a question of fact; an appellate court may reverse only where it finds an abuse of discretion in the trial court’s factual determination. See Robinson v. State, 689 So. 2d 1147, 1149 (Fla. 4th DCA 1997). Appellant has demonstrated no such abuse in this case.
There was no error in the three cell bump up on the scoresheet prepared for sentencing, one for each of the three probation/community control violations. See Wells v. State, 668 So. 2d 1111, 1112 (Fla. 4th DCA 1996). Appellant argues that if a trial court does not add a cell directly after finding a probation violation, the trial court forfeits the ability to add that cell after a subsequent violation. This argument is contrary to case law. In Wells, we authorized a two cell bump up when the defendant “had on two separate occasions violated probation or community control.” Id. The policy allowing trial courts to impose bump ups for all earlier violations of probation encourages trial judges to give probationers “a second or even a third chance” at probation or community control and penalizes those who fail to take advan tage of the opportunity. Williams v. State, 594 So. 2d 273, 275 (Fla.1992).
We agree that the trial court erred in utilizing a scoresheet that indicated twenty points for victim injury, where no points for victim injury were noted on the scoresheet originally prepared for the sentencing in 1994. This issue was not fully explored at sentencing. We remand the case to permit the trial court to conduct a hearing on the extent of actual injury and to assess victim injury points if appropriate. See Landeverde v. State, 769 So. 2d 457 (Fla. 4th DCA 2000); Merkt v. State, 764 So. 2d 865, 866-67 (Fla. 4th DCA 2000); Echols v. State, 660 So. 2d 782, 785 (Fla. 4th DCA 1995).
Affirmed in part, reversed in part, and remanded for resentencing, if appropriate.
GUNTHER, FARMER and GROSS, JJ., concur.
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Rowan v. State, 791 So. 2d 40 (Fla. 2d DCA 2001)…appropriate following modifications of probation because the court noted that to hold otherwise might “discourage judges from giving probationers a second or even a third chance [at probation].” Williams, 594 So. 2d at 275. See also Marrs v. State, 770 So. 2d 277, 278 (Fla. 4th DCA 2000) (allowing a one-cell bump for each of three violations of probation, two of which were actually modifications and recommitments to probation). Under the reasoning of Williams, Rowan’s 1991 violation of community^ control may…
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Vinson Peterson v. State, 962 So. 2d 367 (Fla. 4th DCA 2007)…presented at the original sentencing hearing, and in fact, the charge was reduced to attempted sexual battery rather than sexual battery. Therefore, we find it was error for the trial court to add forty points for victim injury. See Marrs v. State, 770 So. 2d 277, 279 (Fla. 4th DCA 2000)(error to include victim injury points on sentencing scoresheet where no points were found on original scoresheet and issue was not fully explored at sentencing). These points should also be removed upon remand. However, we…
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Robinson v. State, 985 So. 2d 1192 (Fla. 4th DCA 2008)…riginal sentence scoresheet, it may only do so after conducting an evidentiary hearing that establishes facts supporting the nature and extent of the victim’s injury. See Aponte v. State, 810 So. 2d 1008, 1011-12 (Fla. 4th DCA 2002); Marrs v. State, 770 So. 2d 277, 279 (Fla. 4th DCA 2000). In this case, the trial court erred in failing to conduct such a hearing.1 Additionally, the trial court’s error in assessing the victim injury points was not harmless because the record does not conclusively show that the…
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
- Williams v. State, 594 So. 2d 273 (Fla. 1992)
- Steiner v. State, 604 So. 2d 1265 (Fla. 4th DCA 1992)
- Robinson v. State, 689 So. 2d 1147 (Fla. 4th DCA 1997)
- Merkt v. State, 764 So. 2d 865 (Fla. 4th DCA 2000)
- Echols v. State, 660 So. 2d 782 (Fla. 4th DCA 1995)
- Smith v. McELROY, 769 So. 2d 457 (Fla. 1st DCA 2000)
- Landeverde v. State, 769 So. 2d 457 (Fla. 4th DCA 2000)
- Ulysses Glee v. State, 731 So. 2d 759 (Fla. 4th DCA 1999)
- Moddie Wells v. State, 668 So. 2d 1111 (Fla. 4th DCA 1996)