Grady v. StateGrady v. State
- Reporters:
- ,
- Before:
- Campbell, Danahy, Schoonover
On June 20, 1985, appellant was charged by information with failure to appear (Circuit Court Case No. 85-6275). Appellant had failed to appear because he had escaped a work release program. He was subsequently charged with escape (Circuit Court Case No. 85-856). Appellant pled guilty to failure to appear, but was not adjudicated guilty of that offense until January 25, 1990, when the court sentenced him after revoking his probation. Meanwhile, on April 24, 1986, appellant pled guilty to possession of cocaine, battery on a law enforcement officer, possession of paraphernalia and resisting an officer without violence (Circuit Court Case No. 85-7749). A category seven scoresheet (drugs) was used, showing the primary offense to be possession of cocaine (85-7749). Additional cases listed were: 85-856, 85-857 and 85-6275. The scoresheet scored points for the following offenses: Possession of cocaine, possession of paraphernalia, battery on a law enforcement officer and resisting without violence (85-7749); failure to appear (85-6275); and escape (85-856). The record does not reveal what offenses were charged in 85-857. The guidelines’ recommended sentence under this scoresheet was three-and-one-half to four-and-one-half years Florida state prison (F.S.P.). The court withheld adjudication on possession of cocaine and battery on a law enforcement officer, and placed appellant on probation
Almost three years later, on December 4, 1989, an affidavit of violation of probation was filed, alleging that appellant had committed numerous violations of his probation, including the additional offenses of armed burglary, kidnapping, aggravated battery, sexual battery and robbery, all occurring on May 19, 1989. These new violations were charged in 89-8472. An amended affidavit of violation of probation was filed on January 11, 1990, adding that appellant had also committed aggravated battery on his attorney in court during his trial on 89-8472 (aggravated battery on attorney charged in 89-19450). A second amended affidavit of violation of probation was filed on January 16, 1990, alleging that appellant had also committed aggravated assault with a motor vehicle on a detective and had resisted an officer with violence (89-8548).
On January 17, 1990, appellant came before the court for sentencing on his violations of probation in both 85-6275 and 85-7749, and on his new substantive offenses contained in 89-8548 (aggravated assault on an officer and resisting with violence) and 89-8472 (armed burglary, robbery with a deadly weapon, two counts of kidnapping, two counts of aggravated assault and sexual battery).
Sentencing on the violation of probation was deferred because appellant alleged that he had not known he was on probation when he committed the new offenses. To verify that allegation, the court needed the prior sentencing transcript which was not then available. The court did indicate, however, that the scoresheet that it used on that day, January 17, to sentence appellant on the new substantive offenses would be the same scoresheet used on the later violation of probation sentencing. Using a category two scoresheet (sexual offenses), the court proceeded to sentence appellant for his new offenses in 89-8548 and 89-8472 as follows:
Case number 89-8548:
Count I: Aggravated assault of an officer — habitualized; 30 years F.S.P.
Count II: Resisting with violence — ten years F.S.P., consecutive to Count I.
Case number 89-8472:
Count I: Armed burglary — life.
Count II: Robbery with deadly weapon — life, consecutive to Count I.
Count III: Kidnapping — life, consecutive to Count II.
Count IV: Kidnapping — life, consecutive to Count III.
Count V: Aggravated assault — five years F.S.P., consecutive to Count IV.
Count VI: Aggravated assault — five years, consecutive to Count V.
Count VII: Sexual battery — life, consecutive to Count VI.
The court specifically stated that if this sentencing was a departure, its reasons were that appellant was a habitual offender and that he had a “continuing persistence of criminal activity.” This appeared to relate to the proximity in time between appellant‘s release from prison and his commission of new offenses.
Eight days later, on January 25, 1990, having obtained the documentation on the previous hearing and determined that appellant had been advised of his probationary status, the court, using a category nine scoresheet (all other felony offenses), not the category two scoresheet (sexual offenses) it used on January 17, sentenced appellant on his violation of probation in 85-6275 (failure to appear) and 85-7749 (possession of cocaine, battery on a law enforcement officer)1. The court adjudicated
Appellant argues that: (1) The court should have used one scoresheet at one hearing, not two scoresheets at two hearings; and (2) Judge Menendez should not have presided at the revocation hearing since Judge Menendez had witnessed one of the alleged probation violations, the aggravated battery of the attorney in the courtroom (89-19450).
Appellant is correct in arguing that the court should have used only one scoresheet.
In this case, under Clark, the following offenses were “pending before the court for sentencing“: Failure to appear (85-6275);
The court ultimately, however, used two scoresheets, category nine (all other felony offenses) on the new offenses, and category two (sexual offenses) on the probation revocation. This was error. First, all offenses should have been considered together. All were “pending for sentencing” at the same time, or the judge knew they would be pending for sentencing within a few days, and should have been considered at the same time. Second, in considering them together, the court should have had before it: (1) A separate scoresheet for each offense, listing it as the primary offense; and (2) the original scoresheets on the offenses for which appellant was initially given probation, with a one-cell bump up for each violation. Williams v. State, 594 So.2d 273 (Fla. 1992). The court then should have determined which scoresheet recommended the most severe sanction and used that scoresheet to determine the total guidelines sentence allowed.
Since the court here did not follow this procedure, we reverse and remand for proper sentencing.
Turning to appellant‘s second issue, we conclude that it was not error for Judge Menendez to preside at the revocation hearing. First, the facts of appellant‘s aggravated battery violation were not disputed; rather, appellant argued that his probation should not have been revoked because he did not know he was on probation. Second, appellant was violated for many other much more serious offenses, any one of which would have been sufficient to revoke his probation. We believe this may be analogized to the situation in which a judge finds a litigant in contempt of court and then sentences that litigant for the contempt. Thus, we consider Judge Menendez’ witnessing of one of the numerous offenses for which appellant was violated to have been harmless error at best.
Accordingly, we affirm the revocation of appellant‘s probation, reverse appellant‘s sentences and remand for further proceedings.
DANAHY, A.C.J., and SCHOONOVER, J., concur.