Opinion
No. 83-2396.
October 3, 1984. Rehearing Denied November 7, 1984.
Petition for review from the Circuit Court, Broward County, Leroy H. Moe, J.
Richard L. Jorandby, Public Defender, Lawrence Duffy and Anthony Calvello, Asst. Public Defenders, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant seeks review of an order revoking his probation and sentencing him to ten years in prison.
Two points have been presented for our consideration. The first has been mooted by our relinquishment of jurisdiction and the entry and filing of a nunc pro tunc written order designating the grounds for revocation of probation.
In his second point appellant contends that he wished to be sentenced under the new guidelines set forth in Rule of Criminal Procedure 3.701, but before he could make his election the trial court sentenced him outside that format. Immediately thereafter appellant advised the court of his election. The state contends appellant waived the application of the guidelines because his motion was not made until after sentence was pronounced. Considering the point in time when the sentencing took place, we feel the appellant's contentions are valid. The sentencing took place on October 6, 1983, only a few days after the effective date of the guidelines, and because the procedure regarding exercise of the option was still unfamiliar, the appellant's attorney merely failed to move quickly enough at the hearing. Additionally, appellant points to Committee Note (c) of Rule of Criminal Procedure 3.701, which seems to require use of the guidelines in sentencing for a probation violation.
Accordingly, we affirm the order revoking appellant's probation, but remand the cause to the trial court with directions to vacate the sentence appealed from and resentence appellant under the new sentencing guidelines.
AFFIRMED AND REMANDED FOR RESENTENCING.
ANSTEAD, C.J., and RODGERS, EDWARD, Associate Judge, concur.