Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). · Go Syfert
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Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). Cases Citing This Book View Copy Cite
31 citation events across 2 distinct courts.
Strongest positive: Poore v. State (fladistctapp, 1987-02-05)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 7 distinct citers.
discussed Cited "see" Poore v. State
Fla. Dist. Ct. App. · 1987 · signal: see · confidence high
See note 6 herein. [1] This was a three-cell departure upward from the presumptive sentence. [2] Fla.R.Cr.P. 3.701. [3] See Scott v. State, 482 So.2d 607 (Fla. 5th DCA 1986), Clark v. State, 481 So.2d 994 (Fla. 5th DCA 1986), Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985), Gale v. State, 483 So.2d 53 (Fla. 1st DCA), review denied, 492 So.2d 1332 (Fla. 1986). [4] §§ 948.03, 948.01(3), Fla. Stat. (1983). [5] § 948.01(8), Fla. Stat. (1983). [6] The court in Crosby reversed the sentence on other grounds: (1) the written sentence did not conform to the oral pronouncements of the trial court…
cited Cited "see" Isgette v. State
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985); Lorenzo v. State, 483 So.2d 790 (Fla. 4th DCA 1986) (citing Boldes with approval).
cited Cited "see" Petras v. State
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985).
cited Cited "see" Riddle v. State
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985).
cited Cited "see" Lorenzo v. State
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See Monti v. State, 480 So.2d 223 (Fla. 5th DCA 1985) and Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985).
cited Cited "see" Lewis v. State
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
Fla.R.Crim.P. 3.701 d.14; see Boldes v. State, 475 So.2d 1356 (Fla. 5th DCS 1985).
cited Cited "see" Monti v. State
Fla. Dist. Ct. App. · 1985 · signal: see · confidence high
See Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985).
Derrick Joseph BOLDES, Appellant,
v.
STATE of Florida, Appellee.
84-1607.
District Court of Appeal of Florida, Fifth District.
Oct 3, 1985.
475 So. 2d 1356
Sharp.
Cited by 30 opinions  |  Published

James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

SHARP, Judge.

The trial court aggravated appellant's guideline sentence upward more than one cell for the reason that appellant violated his community control conditions. Specifically, the judge stated at the sentencing:[1]

I am departing from the guidelines because I find that you were previously sentenced to two years Department of Corrections and two years Community Control. You violated the community control. To now reduce your sentence to probation just simply would make no sense to me.

Appellant contends this is error because the court was not authorized to increase his sentence more than the next cell higher than the recommended range for this reason. We agree.

This case is distinguishable from Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), because Carter preceded the effective date of the Amendment to Florida Rule of Criminal Procedure 3.701(d)(14). That amendment provides:

Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure. (Emphasis added).

This amendment became effective on July 1, 1984. Ch. 84-328, Laws of Florida; The Florida Bar: Amendment to the Rules of Criminal Procedure (3.701; 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla. 1984). It was therefore in effect on October 26, 1984, when the judge sentenced Derrick and Derrick should have the[*1357] benefit of the amended rule. Compare Joyce v. State, 466 So.2d 433 (Fla. 5th DCA 1985) (Amendment inapplicable to defendant sentenced before its effective date).

In this case, the sentencing judge gave as his sole reason for a "departure" sentence the fact that Derrick violated his community control conditions following his two year term of imprisonment, and that the guideline presumptive sentence of "probation" made "no sense." However, the judge sentenced Derrick in this case to forty-eight months, which was a sentence two brackets up on the hierarchy of the guidelines presumptive sentence ranges. He could have sentenced Derrick to thirty months, using the one bracket up range.

It appears to us that if violation of community control or probation is the sole reason for departing from a guidelines sentence, that the amended rule has mandated the result that the sentence may be increased one bracket. However, if the increase is beyond one bracket, then other clear and convincing reasons must be given for the departure. Fla.R.Crim.P. 3.701(d)(11). An interpretation of the guidelines allowing unrestricted "departure" sentences solely for a violation of probation would, in effect, make the amended rule meaningless.[2]

Accordingly, we vacate the sentence and remand for resentencing.

SENTENCE VACATED; REMANDED.

COBB, C.J., and DAUKSCH, J., concur.

1 Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Fla.R.Crim.P. 3.701(d)(11).
2 Although Florida Rule of Criminal Procedure 3.701(d)(14) allows an increase one cell for a departure based for a revocation of probation, we find that community control is functionally the same as probation, as both are non-incarcerative dispositions. Ch. 948, Fla. Stat. (1983).