Duggar v. StateDuggar v. State
Duggar contends that she was entitled to be sentenced under Florida‘s new sentencing guidelines,
On 21 June 1982, Duggar pled nolo contendere to a charge of attempted aggravated battery. The trial court withheld sentence and placed her on probation for a period of five years.
An affidavit was filed on 17 October 1983 alleging that Duggar had violated the terms of her probation. A hearing was
In its opinion adopting
The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1, 1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto. (Emphasis added)
In urging that Duggar was not entitled to be sentenced under the rule, the State asserts that she was sentenced when she was initially placed on probation and that she therefore is not entitled to the election provided by the rule. This assertion is without merit. When a defendant is placed on probation, the trial court must stay and withhold imposition of sentence.
Moreover, Committee Note (c) to
If a defendant is to be sentenced for a probation violation, and the sentencing judge elects to revoke probation, the new sentence must be in accordance with the guidelines.
Although the Committee Notes to the Florida Rules of Criminal Procedure have not been adopted by the Florida Supreme Court, we find them highly persuasive in arriving at the proper construction to be placed on the rules. Therefore, we hold that a defendant placed on probation prior to 1 October 1983 whose probation is revoked after that date must be sentenced in accordance with
The sentence is vacated and the cause remanded to the trial court for resentencing under the guidelines.
WENTWORTH and BARFIELD, JJ., concur.