82 So. 3d 828
Fla. Dist. Ct. App.2011Background
- Washington pled guilty in two cases with a downward departure and a total sentence of 2 years' incarceration followed by 8 years' probation.
- Washington violated probation by driving with a suspended license; girlfriend testified he helped drive to hospital when she became sick.
- Officer cited for DUS but did not arrest; girlfriend drove them home; state did not refute the testimony.
- At the probation-violation hearing, the court suggested a downward departure might be sought, and defense argued reinstatement of probation was proper.
- Defense cited Franquiz to argue that downward departure requires written reasons; the court questioned the basis for any downward departure.
- The circuit court revoked probation and sentenced Washington to eight years; Washington appealed claiming the court lacked discretion to reinstate probation without a downward-departure reason.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court could reinstate probation without downward-departure reasons. | Washington argues reinstatement is permissible without a downward-departure rationale. | State contends the court understood its discretion and could revoke or reinstate with or without a downward departure. | Reversed; court could reinstate without a downward departure, remand for resentencing. |
Key Cases Cited
- Franquiz v. State, 682 So. 2d 536 (Fla. 1996) (downward departure requires written reasons; revocation sentencing discussed)
- State v. Harrison, 589 So. 2d 317 (Fla. 5th DCA 1991) (reinstate probation without downward departure not requiring a sentence)
- Williams v. State, 889 So. 2d 969 (Fla. 4th DCA 2004) (abuse of discretion in probation context; correct interpretation of discretion)
- Ellis v. State, 816 So. 2d 759 (Fla. 4th DCA 2002) (reversal where court may have misunderstood discretion in sentencing)
- State v. Gray, 721 So. 2d 370 (Fla. 4th DCA 1998) (not required to revoke and sentence when probation violation occurs)
- Russell v. State, 982 So. 2d 642 (Fla. 2008) (abuse of discretion standard in probation revocation matters)