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474 So. 2d 417

474 So.2d 417

10 Fla.L.Weekly 2017

Docket Nos. 84-1742, 84-1743.

Barr v. State

Michael Edwin BARR, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided August 23, 1985.

District Court of Appeal of Florida · decided 1985-08-23

Key passage — most relied on by later courts

“the impossibility of complying with probation while in prison. Furthermore, the underlying concept of probation is rehabilitation, not punishment.”

quoted by 1 later decision, including 629 So. 2d 1067 - Clemons v. State

Relies on Anders v. California · 461 So. 2d 1361 - Davis v. State · Myrick v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1985-08-23

How this case has been cited

Cited by 12 later decisions — most recently October 2000

12 state decisions

80198519902000decided

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 →

¶1*418 James Marion Moorman, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.

¶2Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

¶3FRANK, Judge.

¶4The appellant, Michael Edwin Barr, pleaded guilty to burglary and grand theft. He was placed on probation. Thereafter, he again committed acts of burglary and grand theft. After pleading guilty to the four offenses, he was adjudicated guilty, probation was revoked and a three year prison sentence was imposed for grand theft. He received probation for each of the other three convictions. All terms, including the prison term, were to run concurrently.

¶5Although the appellant's appointed counsel requested permission to withdraw from this matter pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), she did submit that a sentence in excess of the guidelines might arguably provide grounds for reversal. Our assessment of the record in this matter requires resentencing by the trial court.

¶6At his sentencing hearing, the appellant affirmatively selected through his attorney to be sentenced pursuant to the guidelines. Subsequently, he objected to the sentences which were imposed. The following colloquy involving the trial court and the appellant's trial counsel suggests the possibility that there was a departure from the presumptive sentence:

THE COURT: The guidelines show three years; is that right?
MR. WHITE: Yes, sir.
THE COURT: Any further comments?
MR. WHITE: No, sir, just other than to relate that the defendant would affirmatively elect to be sentenced under the guidelines.
THE COURT: Well, excuse me. Go ahead. I am not. I am going to give him probation and three which you will object to, right?

¶7We find a sufficient degree of uncertainty in the foregoing colloquy to warrant the belief that the trial court was not free of doubt as to the appellant's presumptive sentence. Cf. Davis v. State, 461 So.2d 1361 (Fla. 2d DCA 1985). No scoresheet is found in the record and it appears from the transcript of the sentencing hearing that the lower court did not consider a scoresheet before sentencing the defendant. We are unable to determine whether the appellant received a guidelines *419 or a statutory sentence. If departure did occur, the trial court should have determined the presumptive sentence before departing from the guidelines, Doby v. State, 461 So.2d 1360, (Fla. 2d DCA 1984), Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984), Gage v. State, 461 So.2d 202 (Fla. 1st DCA 1984), and it should have expressed in writing the clear and convincing reasons essential to a valid departure. If on the other hand the trial court imposed a guidelines sentence, it should have prepared a scoresheet. Rule 3.701(d)(1) of the Florida Rules of Criminal Procedure. The trial court erred in its sentencing procedure.

¶8Finally, the appellant received concurrent terms of imprisonment and probation. In Brudie v. State, 467 So.2d 1113 (Fla. 2d DCA 1985), we held it was reversible error to impose concurrent terms of imprisonment and probation. One cannot be simultaneously sentenced to probation and incarceration because of the impossibility of complying with probation while in prison. Furthermore, the underlying concept of probation is rehabilitation, not punishment.

¶9Therefore, we vacate the appellant's sentences and remand for resentencing with directions that a sentencing guidelines scoresheet be prepared and considered by the trial court before the imposition of a sentence.

¶10GRIMES, A.C.J., and OTT, J., concur.

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