O'Brien v. State
O'Brien v. State
Opinion of the Court
The defendant was originally adjudicated guilty of two offenses: attempted armed robbery (§ 812.13(2)(a), Fla.Stat.) and ag
The defendant served 2V2 years, the maximum in this cell. He then began a term of probation. He violated the probation by committing a new crime, possession of cocaine. To stay within the recommended guideline would be to impose no punishment.
The defendant appeals the departure sentence.
The 2V2 years the defendant was previously incarcerated was as punishment for the aggravated battery offense. He is now being sentenced for the attempted armed robbery offense for which he was originally placed on probation. Florida Rule of Criminal Procedure 3.701d.l4. provides that a sentence imposed after revocation of probation may be increased to the next higher cell (guideline range) without requiring a reason for departure. The next higher guideline range cell authorizes yH?r&lz years incarceration. For some reason not shown by the record, the possession of cocaine charge which was the basis for termination of the probation on the attempted armed robbery offense apparent ly did not constitute an additional offense at conviction (Rule 3.701d.4.) and was therefore not part of this scoresheet in this case. If the defendant is convicted of the cocaine charge, he can then be sentenced and punished for that offense; that charge is no reason for a departure sentence in this case.
We cannot agree with the trial court that the imposition of a non-departure sentence of 3V2 years incarceration for the offense of attempted armed robbery for which the defendant is now being sentenced will constitute “no punishment.”
The reasons for departure being insufficient, the sentence imposed is vacated and the cause is remanded with directions that the trial court impose a sentence within the authorized guidelines range, being a sentence not exceeding 3V2 years incarceration.
SENTENCE VACATED, CAUSE REMANDED.
. We do not understand what was intended or accomplished by this quoted language.
Concurring Opinion
concurring specially.
I concur but note that the defendant was sentenced to incarceration as to one offense and placed on probation in lieu of being sentenced as to another offense. In the sentencing alternative classification scheme contained in Poore v. State, 531 So.2d 161 (Fla. 1988), as to one offense the sentence was “(1) a period of confinement” and as to the second offense the sentencing alternative was “(5) straight probation.” This case involves neither a “true split sentence” under section 948.01(8), Florida Statutes, nor a “probationary split sentence.” In the opinion in O’Brien v. State, 478 So.2d 497 (Fla. 5th DCA 1985), came dismissed, 480 So.2d 1296 (Fla. 1985), O’Brien’s sentence in this case was referred to as a “split sentence.” That statement was an error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.