KEVIN HARVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harvey appeals his probation revocation sentence, challenging the trial court's departure from Florida's sentencing guidelines. The court agrees that the trial judge improperly relied on prior arrests without convictions and juvenile arrests to justify the departure, reversing the sentence and remanding for resentencing under the guidelines.
The trial court erred in departing from the guidelines because its justification did not constitute a 'clear and convincing reason' under the rules. Prior criminal conduct that cannot be considered in computing the sentencing scoresheet cannot be relied upon to justify departure from the guidelines, and juvenile arrests without convictions are explicitly prohibited as bases for departure.
[1] A defendant is entitled to be sentenced under new sentencing guidelines if they affirmatively request it.
[2] Oral pronouncements of reasons for departing from sentencing guidelines, when transcribed in the record, may be sufficient for meaningful appellate review.
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Join FLexlaw to unlock all legal intelligence“He violated the Court's confidence and he's a thief and I make that finding, and those are the grounds that I go outside of the guidelines.”
The trial judge's stated reason for departing from the sentencing guidelines, which the appellate court found insufficient.
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Join FLexlaw to unlock all legal intelligenceHarvey originally pled guilty to grand theft and received three years probation. In June 1983, he was charged with violating probation terms, admitted…
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PER CURIAM.
Harvey appeals from an order revoking his probation and sentencing him to three years in state prison. He contends that he was entitled to be sentenced under Florida’s new sentencing guidelines, Florida Rule of Criminal Procedure 3.701. We agree and reverse.
Harvey originally pled guilty to a charge of grand theft and received three years probation. In June of 1983, he was charged with violating the terms of his probation. He admitted to the violation and was sentenced to three years imprisonment on October 18, 1983.
At the probation revocation hearing Harvey affirmatively requested to be sentenced under the guidelines set forth in Florida Rule of Criminal Procedure 3.701. The trial judge verbally denied the request, citing the following grounds as reasons for his departure from the guidelines:
(1) a 1972 juvenile arrest for breaking and entering;
(2) a 1972 juvenile arrest for petit larceny;
(3) a 1975 juvenile arrest for buying and concealing stolen property;
(4) a 1975 juvenile arrest for possession of stolen property and breaking and entering with intent to commit grand larceny;
(5) a 1980 conviction for having an unsecured tag and vehicle inspection;
(6) a 1981 fine for disobeying a stop sign;
(7) a 1982 fine for racing on the highway.
In view of that criminal history, the trial court concluded, “He violated the Court’s confidence and he’s a thief and I make that finding, and those are the grounds that I go outside of the guidelines.”
As a preliminary matter, we observe that the trial court failed to provide a written statement providing the reasons for the departure as required by Florida Rule of Criminal Procedure 3.701(d)(ll). However, we do not reverse on that basis because the trial court’s reasons were in fact transcribed as part of the record. We believe that oral explanation in the record sufficiently provides the opportunity for meaningful appellate review for purposes of Florida Rule of Criminal Procedure 3.701. Cf. Cave v. State, 445 So. 2d 341 (Fla.1984); Thompson v. State, 328 So. 2d 1 (Fla.1976).
Turning to the merits, we hold that the trial court erred by departing from the guidelines because the proffered justification does not amount to a “clear and convincing reason” which warrants aggravating the sentence for purposes of Rule 3.701(d)(ll). The state concedes that none of the items listed in appellant’s history could properly be considered as “prior record” in the computation of a scoresheet under Rule 3.701. See Rule 3.701(d)(5)(a)(l), (4) and (d)(5)(c). We hold that past criminal conduct which cannot be considered in computing the scoresheet cannot be relied upon as justification for departure from the guidelines. Indeed, reliance on the first four items cited by the trial court as a basis for departure is clearly proscribed by Rule 3.701(11), which provides in pertinent part that “Reasons for departing from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.” (emphasis added). Consequently, we vacate the sentence and remand this case to the trial court for resentencing under the guidelines.
REVERSED AND REMANDED.
DOWNEY, BERANEK and HURLEY, JJ., concur.
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Citator
Cited By (32 total)
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State v. Jackson, 478 So. 2d 1054 (Fla. 1985)…nd dissents in part with an opinion, in which SHAW, J., concurs. . We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. This cause was initially certified to us by the First District Court of Appeal as being in direct conflict with Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984). The Fourth District Court of Appeal receded from its Harvey decision in Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985). . We have consistently enforced similar provisions. See Cave v. State, 445 So. 2d 341 (Fla.1984) (rem…
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Weems v. State, 469 So. 2d 128 (Fla. 1985)…ALDERMAN, Justice. We review the decision of the District Court of Appeal, Second District, in Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984), which expressly and directly conflicts with the Fourth District’s decision in Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984). This is a sentencing guidelines case. The issue before us is whether Weems’ extensive juvenile record, which could not be considered in calculating the applicable sentencing range because the juvenile dispositions were over thr…
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Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)…OS, Judge, concurs specially. My disagreement with my two fellow judges in the majority is minimal. It involves only a portion of the footnote numbered two in the opinion. Otherwise, I agree with the opinion and the result. In Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984), the fourth district refrained from reversing a circuit court for failure “... to provide a written statement providing the reasons for the departure as required by Florida Rule of Criminal Procedure 3.701(d)(ll).” They did that…1 / 2
Previewing 3 of 32 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thompson v. State, 328 So. 2d 1 (Fla. 1976)
- Alphonso Cave v. State, 445 So. 2d 341 (Fla. 1984)
- THE Florida BAR v. Hazen, 445 So. 2d 341 (Fla. 1984)