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461 So. 2d 127

461 So.2d 127

10 Fla.L.Weekly 112

Milton v. State

District Court of Appeal of Florida

Decided November 8, 1984

District Court of Appeal of Florida · decided 1984-11-08

Cited by 1 later decisions — most recently July 1985

1 state decisions

Key passage — most relied on by later courts

“Is a defendant who was placed on probation before October 1, 1983, entitled to elect to be sentenced under the sentencing guidelines after October 1, 1983, upon a revocation of his probation?”

quoted by 1 later decision, including 475 So. 2d 670 - State v. Milton

Relies on In re Rules of Criminal Procedure · 454 So. 2d 675 - O'BRIEN v. State · Duggar v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1984-11-08

View the full empirical analysis of this case →

COBB, Chief Judge.

¶1In this case, the trial judge revoked the defendant’s probation which had commenced in July of 1982, and imposed sentence in November, 1983, without utilizing the sentence guidelines, which the trial judge found to be inapplicable on the basis that the sentence related back to the time probation was imposed. This approach is reflected in the dissenting opinion of Judge Campbell in Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984). This court, however, previously has adopted the Boyettmajority view. See Mack v. State, 458 So.2d 347 (Fla. 5th DCA 1984); Rutlin v. State, 455 So.2d 1347 (Fla. 5th DCA 1984); O’Brien v. State, 454 So.2d 675 (Fla. 5th DCA 1984); Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984). The First District Court of Appeal also agrees with Boyett. See Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984).

¶2On authority of the foregoing cases, we vacate the sentence imposed and remand for sentencing in accordance with the sentencing guidelines. See In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

¶3SENTENCE VACATED; REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

¶4ON MOTION FOR REHEARING

COBB, Chief Judge.

¶5Pursuant to motion for rehearing by the state, we certify to the supreme court as a question of great public importance the same question certified in Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984):

IS A DEFENDANT WHO WAS PLACED ON PROBATION BEFORE OCTOBER 1, 1983, ENTITLED TO ELECT TO BE SENTENCED UNDER THE SENTENCING GUIDELINES AF*128TER OCTOBER 1, 1983, UPON A REVOCATION OF HIS PROBATION?

¶6DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

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