JAMES SYLVESTER THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Thomas appeals his convictions for robbery with a firearm and possession of a short-barreled shotgun, challenging both the denial of his motion to suppress and his sentences. The court affirmed the convictions but reversed the sentences as being improper departures from sentencing guidelines.
The trial court properly denied the motion to suppress because the arrest was proper. However, the trial court erred in departing from the sentencing guidelines solely because the co-defendant received a 15-year sentence. Equal sentencing of co-defendants is not a valid ground for departure under Florida's sentencing guidelines.
[1] A trial court's determination that an arrest was proper is supported by sufficient competent evidence if the record contains such evidence.
[2] A trial court errs in departing from sentencing guidelines solely because a codefendant received a longer sentence.
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“In sum, the trial court erred in departing from the guidelines for the sole reason that Thomas's co-defendant had received a fifteen year sentence.”
The court's holding that equal sentencing of co-defendants cannot be the sole basis for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceThomas was arrested in connection with a robbery and charged with robbery with a firearm and possession of a short-barreled shotgun. The trial court d…
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FRANK D. UPCHURCH, Jr., Judge.
Thomas appeals from judgments and sentences for robbery with a firearm and possession of a short barreled shotgun.
The first point we address is whether the trial court erred in denying Thomas’ motion to suppress. Thomas contends that the photographic evidence used to identify him as one of the assailants was obtained as the result of an illegal arrest. We have reviewed the record and find sufficient competent evidence to support the trial court’s determination that the arrest was proper. Accordingly, we affirm Thomas’ convictions.
The next point we address is whether the trial court erred in departing from the recommended guideline sentence.1 Thomas was sentenced to concurrent terms of fifteen years for robbery and five years for possession of a short-barreled shotgun. The recommended sentence under the guidelines was nine years. The only reason the court gave for departing from the sentencing guidelines is reflected in the following colloquy:
MR. TEDFORD [defense counsel]: Mr. Thomas has been advised of all of this. He had asked me one focal question which would be, being advised that the Court would, if he elected guidelines, go outside of them. He was curious as to what the criteria would be for going outside. At our bench conference, the Court indicated that the criteria for going outside of the guidelines would be attitude and demeanor of the Defendant during the trial and in Court appearances, also the fact that the Codefendant had entered a guilty plea and was sentenced to fifteen years. And that there is a case law setting forth that the Codefendant should be treated equally. As a consequence, the Court would impose a sentence not less than fifteen, even if the guidelines were elected.
THE JUDGE: I can tell you that the Codefendant who pled and got fifteen years will not get more than Mr. Thomas. Mr. Thomas will get under way— which ever way he goes will receive not less than fifteen years.
No reason for departure was given on the guidelines scoresheet nor did the court provide any other explanation transcribed in the record. The co-defendant’s score-sheet was not made a part of the record.
On appeal, the state has argued that “it is a well-known axiom of law that equally culpable defendants should receive equal sentences,” citing Demps v. State, 395 So. 2d 501 (Fla.1981) and Slater v. State, 316 So. 2d 539 (Fla.1975). Without analyzing the applicability of those cases to the state’s argument, it is obvious that they are not applicable to sentences calculated under the guidelines. Florida Rule of Criminal Procedure 3.701(b)(4) states:
The severity of the sanction should increase with the length and nature of the offender’s criminal history.
Here, if the co-defendant had an extensive criminal history and Thomas did not, it would not be appropriate to give Thomas a sentence outside the guidlines simply because it was indicated in the co-defendant’s case.
In sum, the trial court erred in departing from the guidelines for the sole reason that Thomas’s co-defendant had received a fifteen year sentence. Accordingly, we af firm the appealed convictions, but vacate the sentences and remand for resentencing to the presumptive or recommended guideline sentence or to a departure sentence imposed in accordance with the sentencing guidelines.
Judgments AFFIRMED; sentences REVERSED and cause REMANDED for re-sentencing.
SHARP, J., concurs.
COWART, J., dissents with opinion.
. Fla.R.Crim.P. 3.701.
COWART, Judge,
dissenting:
This departure sentence should be affirmed on authority of Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984); Hackney v. State, 456 So. 2d 1209 (Fla. 5th DCA 1984); Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984); Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Sanders v. State, 510 So. 2d 296 (Fla. 1987)…man received. We recognize that upward departures cannot be justified solely in order to match the sentence of a codefendant. Von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA), remanded on other grounds, 478 So. 2d 1071 (Fla.1985); Thomas v. State, 461 So. 2d 274 (Fla. 5th DCA 1985). We conclude, however, that this can be a valid basis for downward departure, although we caution that each case must be decided entirely on its own facts and circumstances. We reject the state’s argument that our ruling means t…
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State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010)…cted of committing different offenses and the jury convicted Leverett of committing his offenses with a firearm. Also, Leverett had a prior criminal record, and therefore, his minimum guidelines sentence was higher than Harris’. See Thomas v. State, 461 So. 2d 274 (Fla. 5th DCA 1985) (holding that the trial court was not permitted to depart from the sentencing guidelines simply because the co-defendant received a longer sentence; the court explained that if the co-defendant had an extensive criminal history a…
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State v. Sanders, 512 So. 2d 204 (Fla. 4th DCA 1986)…ndant but refused to offer to the instant defendant. We are unable to find any support for the proposition that the sentence here pronounced, which would fall below the guidelines, can be predicated on the fate of a codefendant. See Thomas v. State, 461 So. 2d 274 (Fla. 5th DCA 1985); Von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985), and Brinson v. State, 483 So. 2d 13,16 n. 3 (Fla. 1st DCA 1985). Our conclusion admittedly involves a paradox. The trial judge is supposed to have retained his discretion…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Darius Slater v. State, 316 So. 2d 539 (Fla. 1975)
- Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984)
- Bennie Demps v. State, 395 So. 2d 501 (Fla. 1981)
- Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984)
- Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984)
- Hackney v. State, 456 So. 2d 1209 (Fla. 5th DCA 1984)