DARRELL WAYNE DEER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A sentencing court may depart from guidelines based on a defendant's prior convictions, even if those convictions were used to arrive at the recommended sentence, and may impose any sentence authorized by law if clear and convincing reasons for departure exist.
[1] A sentencing court may depart from the guidelines based on a defendant's prior convictions, even if those convictions were used to arrive at the recommended sentence.
[2] A sentencing court's departure from guidelines is permissible when based on clear and convincing reasons, such as a defendant's demonstrated inability to conform to proba…
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 intelligenceThe trial judge departed from sentencing guidelines and imposed a four-year sentence for a third-degree felony, citing the defendant's personal histor…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Clear And Convincing Reasons For Departure cases and more on FLexlaw
DAUKSCH, Judge.
This is an appeal from a guideline sentence. The trial judge departed from the guidelines and sentenced the appellant to four years in prison for a third degree felony.
The basis upon which the judge departed was that:
The defendant’s personal history demonstrates his inability to conform to probation or to obey the law. He is a perpetual scofflaw.
O.K., Mr. Deer, I cannot help but find based upon your record that your personal history demonstrates your inability to conform to probation or to obey the laws which is perpetual.
Therefore, I am going to depart from the guidelines.
Appellant presents two issues. First, whether the trial court’s departure from the recommended range is based on clear and convincing reasons as Criminal Rule 3.701 d.ll. requires? Second, where the maximum legal term of imprisonment for appellant’s crime is five years, whether a departure sentence of four years incarceration is an excessive departure? This court has previously resolved both of these issues in favor of appellee.
In Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984), this court held that a sentencing court may depart from the guidelines recommended sentence on the basis of a defendant’s prior convictions even though those prior convictions had been used in arriving at the recommended sentence. In Hendrix, this court considered and rejected appellant’s argument, based on cases from Minnesota, that double-dipping sentences, like the instant one, are improper. Since the date of its release, other Florida courts of appeal have cited Hendrix with approval. See, e.g., McCuiston v. State, 462 So. 2d 830 (Fla. 2d DCA 1984); Townsend v. State, 458 So. 2d 856 (Fla. 2d DCA 1984); Dickey v. State, 458 So. 2d 1158 (Fla. 1st DCA 1984); Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984). Based upon Hendrix, the lower court’s written reason for departing from the guidelines recommended sentence is clear and convincing. Appellant has not disputed the judge’s findings regarding his inability to conform to probation or to obey the law. He also has not disputed the finding that he is a scofflaw. We do not have the pre-sentence investigation report but assume it supports the findings.
With respect to the second issue appellant raises, this court has previously held that once clear and convincing reasons exist which cause a sentencing court to depart from the guidelines, the court may impose any sentence authorized by law. Gann v. State, 459 So. 2d 1175 (Fla. 5th DCA 1984); Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984). The maximum term of imprisonment authorized by law in the instant case is five years. § 775.-082(3)(d), Fla.Stat. (1983). Therefore, the lower court did not err in imposing on appellant a departure sentence of four years incarceration.
The judgment and sentence are affirmed.
COBB, C.J., and COWART, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Alphonso Prosperty Smith v. State, 479 So. 2d 804 (Fla. 1st DCA 1985)…fense. Brooks v. State, 456 So. 2d 1305 (Fla. 1st DCA 1984), approved 476 So. 2d 163 (Fla.1985). While reason number 3 has previously been found a valid basis for departure, see Dickey v. State, 458 So. 2d 1156 (Fla. 1st DCA 1984) and Deer v. State, 462 So. 2d 96 (Fla. 5th DCA 1985), rev’d., 476 So. 2d 163 (Fla.1985), the Florida Supreme Court’s holding in Hendrix v. State, 475 So. 2d 1218 (Fla.1985), that it is improper to consider a defendant’s prior convictions as a basis for departure, implicitly overrul…
-
Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985)…rcumstances surrounding the offense,” as contemplated by Rule 3.701(b)(3), in deciding to sentence outside of the guidelines. See Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984); Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984); Deer v. State, 462 So. 2d 96 (Fla. 5th DCA 1985) (reason number nine). [*782] Reason number six is an improper reason for departing from the recommended guidelines sentence. Defendant’s lack of remorse is not a clear and convincing reason to depart from the guidelines. See Sarv…
-
Keys v. State, 473 So. 2d 800 (Fla. 5th DCA 1985)…l conduct indicating that he is unsuitable for probation or community control and the facts and circumstances relating to the present offenses — provide clear and convincing reasons supporting departure from the guidelines. See, e.g., Deer v. State, 462 So. 2d 96 (Fla. 5th DCA 1985), review granted, Supreme Court No. 66,532; Murphy v. State, 459 So. 2d 337 (Fla. 5th DCA 1984); Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984), review granted, Supreme Court No. 66,320; Burke v. State, 456 So. 2d 1245 (Fla.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
- Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984)
- Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984)
- McCUISTON v. State, 462 So. 2d 830 (Fla. 2d DCA 1984)
- Gann v. State, 459 So. 2d 1175 (Fla. 5th DCA 1984)
- Townsend v. State, 458 So. 2d 856 (Fla. 2d DCA 1984)