WILLIAM D. FLEMING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William D. Fleming appeals his sentencing for robbery, challenging a sentence exceeding the Florida sentencing guidelines. The appellate court upholds the sentence, holding that trial courts may consider factors used in guideline scoring as a basis for departure and that clear reasons stated on the record satisfy procedural requirements even without a written order.
The trial court properly imposed a sentence in excess of the guidelines because it identified aggravating factors (the timing of subsequent offenses and the aggravated nature of the robbery itself). Factors used in guideline scoring may also be considered to justify departure from the guidelines. A written sentencing order is preferred but not required when the trial court states clear and convincing reasons on the record.
[1] Factors used in scoring under sentencing guidelines may also be considered as a basis for aggravating a sentence.
[2] Committing new offenses while awaiting sentencing on a prior charge can be a valid reason for departing from sentencing guidelines.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“there is nothing in Florida Rule of Criminal Procedure 3.701 which says that factors used in scoring cannot also be considered to justify departure from the guidelines”
Establishes that the same factors may be used in guideline calculations and to justify aggravation
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Join FLexlaw to unlock all legal intelligenceFleming pled guilty to robbery under Florida Statutes section 812.13(2), as well as dealing in stolen property and grand theft. The trial judge senten…
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[*1301] SCHEB, Judge.
Defendant, William D. Fleming, contends that the court improperly sentenced him for robbery by imposing a sentence in excess of that recommended by the new sentencing guidelines.
Defendant pled guilty to the offense of robbery under section 812.13(2), Florida Statutes (1981). He also pled guilty to charges of dealing in stolen property and grand theft.
The trial judge decided to sentence the defendant outside the guidelines’ recommendations. He sentenced him to seven and one-half years on the robbery charge and placed him on probation on the other two charges for fifteen and five-year terms consecutive to the robbery sentence but concurrent with each other. The trial judge did not sign a written order citing his reasons for exceeding the presumptive sentence recommended by the guidelines. However, on the record he stated that he aggravated defendant’s sentence for two reasons: (1) the defendant committed the dealing in stolen property and grand theft offenses while awaiting sentencing on the robbery charge, and (2) the robbery was an aggravated robbery.
Defendant argues that the trial court erred in sentencing him on the robbery conviction in excess of the sanctions recommended by the guidelines. He raises two points.
First, he argues that the trial court should not have considered factors used in scoring under the guidelines as a basis for aggravating his sentence. We reject this argument, because there is nothing in Flor-ida Rule of Criminal Procedure 3.701 which says that factors used in scoring cannot also be considered to justify departure from the guidelines. See Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984), and Hendrix v. State, 453 So. 2d 515 (Fla. 5th DCA 1984). Cf. Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984).
By committing the dealing in stolen property and grand theft offenses while awaiting sentencing on the robbery charge, the defendant established a pattern of committing new crimes. See Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984). Thus, the trial court could properly consider the timing of the commission of these offenses as a basis for departing from the guidelines. See Swain. See also Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984). Further, the trial court could properly consider the aggravating circumstances surrounding defendant’s commission of the robbery offense. See Smith and rule 3.701(b)(3).
Second, defendant argues that the trial court erred in not entering a written order delineating the reasons why it departed from the guidelines. We urge trial courts to include written reasons with the sentencing order. Rule 3.701(d)(ll). Nevertheless, we have previously rejected defendant’s argument where, as here, the trial court sets forth clear and convincing reasons in the transcript of the sentencing hearing. Smith
Accord, Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984). Contra, Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984); and Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984).
Accordingly, we affirm defendant’s conviction and sentence.
GRIMES, A.C.J., and DANAHY, J., concur. . We note that at the time of the filing of the briefs, counsel did not have available to them our opinion in Smith.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)…(Fla. 2d DCA 1984); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984); Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984); Fleming v. State, 456 So. 2d 1300 (Fla. 2d DCA 1984). Can depart from guidelines even though prior record has already been factored in on score sheet Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Kiser v. State, 455 So. 2…1 / 3
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Oden v. State, 463 So. 2d 313 (Fla. 1st DCA 1984)…ct, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi), with Bell v. State, 459 So. 2d 478 (Fla. 5th DCA 1984); Webster v. State, 461 So. 2d 965 (Fla. 2d DCA 1984); Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984); Fleming v. State, 456 So. 2d 1300 (Fla. 2d DCA 1984); Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984); Klapp v. State, 456 So. 2d 970, 971 (Fla. 2d DCA 1984); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); and Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984). ERVIN, C.J.,…
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Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985)…determining a guidelines score. Nor would consideration of this factor violate the prohibition of Fla.R.Crim.P. 3.701(d)(ll) concerning factors relating to arrest for which convictions have not been obtained. Id. at 535. See also Fleming v. State, 456 So. 2d 1300 (Fla. 2d DCA 1984) (offense committed while awaiting sentence on an earlier offense); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984) (similar crime committed within one month after being placed on probation). Because the timing of the commission…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984)
- Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984)
- Sherman v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984)
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984)
- McCORMICK v. Norman, 453 So. 2d 515 (Fla. 2d DCA 1984)