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466 So. 2d 433

466 So.2d 433

10 Fla.L.Weekly 876

Docket No. 84-791.

Joyce v. State

George Robert JOYCE, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided April 4, 1985.

District Court of Appeal of Florida · decided 1985-04-04

Key passage — most relied on by later courts

“13. Community control is a form of intensive supervised custody in the community involving restrictions of the freedom of the offender; is a sanction which the court may impose upon a finding-that-probation-is-an unsuitable — disposition When community control is imposed, it shall not exceed the term provided by general law. Committee Note (d)(13). (d)(13) Community control is a viable alternative for any state prison sentence less than twenty-four (24) months without requiring a reasonable departure. It is appropriate to impose a sentence of community control to be followed by a term of probation. The total sanction (community control and probation) shall not exceed the term provided by general law. Community control is not an alternative sanction from the recommended range of any non-state prison sanction unless the provisions of Florida Rule of Criminal Procedure 3.701(d)(ll) are applied.”

quoted by 1 later decision, including 556 So. 2d 495 - Ray v. State

“[t]he total sentence cannot exceed the total guideline sentence unless a written reason is given.”

quoted by 1 later decision, including 491 So. 2d 594 - McDowell v. State

Relies on 448 So. 2d 1013 - State v. Rhoden · Florida Bar: Amendment to Rules of Criminal Procedure · Carter v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1985-04-04

How this case has been cited

Cited by 13 later decisions — most recently April 2001

13 state decisions

100198519902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.

¶2Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

¶3FRANK D. UPCHURCH, Jr., Judge.

¶4George Joyce appeals from judgments and sentences for burglary and assault. The sole question on appeal is whether the trial court erred in sentencing him under the guidelines.[1]

¶5*434 Joyce was convicted of burglary and assault following a jury trial. His score of eighty-one resulted in a recommended sentence under the guidelines of three years incarceration. At the sentencing hearing held on April 26, 1984, Joyce was sentenced to three years imprisonment followed by three years probation on the burglary charge and a concurrent term of sixty days incarceration on the assault charge.

¶6Florida Rule of Criminal Procedure 3.701(d)(12) provides as follows:

Sentencing for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given.

¶7The Committee Note following this subsection provides as follows:

The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11[2] are complied with.
If a split sentence is imposed (i e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range. (emphasis added)

¶8Here, a split sentence was imposed, but the total sanction imposed exceeded the maximum guideline range. No reason for departure appears on the scoresheet nor was one articulated by the trial judge at the sentencing hearing. Accordingly, the cause must be remanded for resentencing.

¶9The state's arguments are without merit. First, the state contends that the error was waived. This court has recently held that the contemporaneous objection rule does not apply to sentencing errors. See Walcott v. State, 460 So.2d 915 (Fla. 5th DCA 1984); Crews v. State, 456 So.2d 959 (Fla. 5th DCA 1984); Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984). See also State v. Rhoden, 448 So.2d 1013 (Fla. 1984).

¶10Second, the state claims that the Committee Notes are mere "dicta" and are not entitled to the same force and effect as the sentencing guideline rule itself. This is clearly erroneous. In The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla. 1984), the Florida Supreme Court specifically stated that the Committee Notes have been adopted as part of the rules.

¶11Finally, the state points out that the Committee Note to rule 3.701(d)(12) has been amended to read as follows:

The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.
If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law.

¶12This amendment was adopted by the Florida Supreme Court on May 8, 1984, but did not become effective until July 1, 1984, upon adoption by the Legislature. Ch. 84-328, Laws of Fla.; § 921.001(4)(b), Fla. Stat. (1983). Here, Joyce was sentenced on April 26, 1984, prior to the effective date of the amendment. As this court has previously noted, such an amendment cannot be applied retroactively. See Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

¶13*435 Joyce's convictions for burglary and assault and the sentence for assault are affirmed, and the cause is remanded for sentencing to the recommended guideline sentence or to a departure sentence imposed in accordance with the sentencing guidelines.

¶14AFFIRMED in part, REVERSED and REMANDED in part.

¶15DAUKSCH and COWART, JJ., concur.

NOTES

¶16[1] Fla.R.Crim.P. 3.701.

¶17[2] Paragraph 11 requires that any sentence outside the guidelines be accompanied by a written statement delineating the reasons for departure.

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