DAVID W. MACFARLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David MacFarland appealed his sentence of three years' imprisonment followed by seven years' probation for burglary of a dwelling, arguing it exceeded the recommended guideline sentence. The Florida Fifth District Court of Appeal affirmed the sentence, holding that the trial court properly departed from the guidelines based on valid sentencing factors including the defendant's prior record and the victims' significant economic loss.
The trial court did not abuse its discretion in departing from the guidelines sentence. The defendant's prior record and the extent of economic loss to the victims are valid bases for departure from guideline sentences. The trial court's determination that lengthy supervised probation was required to enforce restitution constituted clear and convincing reasons for the departure.
[1] A sentencing court may depart from recommended guidelines sentences when clear and convincing reasons are stated for such departure.
[2] A defendant's prior criminal record constitutes a valid basis for departing from recommended 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“Rule 3.701(d)(ll) however, authorizes departures from guidelines sentences when clear and convincing reasons are stated for such departure.”
Establishes the legal standard allowing trial courts to depart from recommended guideline sentences upon stating clear and convincing reasons.
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Join FLexlaw to unlock all legal intelligenceMacFarland pleaded guilty to burglary of a dwelling, a second-degree felony. The recommended guideline sentence was three years' incarceration. The tr…
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ORFINGER, Judge.
The appellant plead guilty to a charge of burglary of a dwelling, a second degree felony. He appeals a sentence of three years’ imprisonment followed by seven years’ probation. Appellant’s recommended guidelines sentence was three years’ incarceration. We affirm.
The crime for which appellant was sentenced and the sentencing itself took place prior to July 1, 1984. At that time, Committee Note (d)(12) to Rule 3.701, Florida Rules of Criminal Procedure provided 1:
The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.
Rule 3.701(d)(ll) however, authorizes departures from guidelines sentences when clear and convincing reasons are stated for such departure. Here, the court announced that it was considering appellant’s prior record (the incarceration here was to be consecutive to a sentence presently being served) and the fact that the victims had suffered a great monetary loss for which appellant should be required to make restitution. The court concluded that restitution could be effected only if appellant got his life in order under supervision and became employed. It is clear from the record that the court believed that supervised probation was required for a lengthy period to enable appellant to make restitution of the $8,000 he had taken from the victims. Appellant’s prior record is a valid basis for departure, Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984), as is the extent of the economic loss to the victims, Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984). In the light of the finding by the trial court that the lengthy period of supervised probation was required so as to enforce the required restitution, we cannot say that the court abused its sentencing discretion in departing from the recommended sentence. Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984).
AFFIRMED.
COBB, C.J., and COWART, J„ concur. . Effective July 1, 1984, Committee Note (d)(12) to Rule 3.701, Fla.R.Crim.P. has been amended to read:
If a split sentence is imposed ... the incarceration portion imposed shall not be less than the minimum of the guideline nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law. [Emphasis added].
See, The Florida Bar: Amendments to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So. 2d 824 (Fla.1984), and Chapter 84-328, Laws of Florida (1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Rice, 464 So. 2d 684 (Fla. 5th DCA 1985)…s was a departure sentence. Under the above-mentioned version of paragraph (d)(12) this court has previously approved a departure sentence where the combined period of incarceration and probation exceeded the guideline sentence. MacFarland v. State, 462 So. 2d 496 (Fla. 5th DCA 1984). Given a proper case for departure, there is no reason for a different result where the departure is in the nature of a reduction of sentence rather than an enhancement. In other words, note (d)(12) does not control where the jud…
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Norman v. State, 468 So. 2d 1063 (Fla. 1st DCA 1985)…s required to pay restitution of approximately $15,000. The court explained its departure from the guidelines by stating that, “Defendant needs additional probation time in order to make restitution.” This reason was approved in MacFarland v. State, 462 So. 2d 496 (Fla. 5th DCA 1984). However, that decision did not address Rule 3.701(b)(1), Fla.R.Cr.P., which provides that sentencing should be neutral with regard to social and economic status. Norman argues that extending probation to give additional time to…
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Roberts v. State, 677 So. 2d 309 (Fla. 1st DCA 1996)…s was a departure sentence. Under the above-mentioned version of paragraph (d)(12) this court has previously approved a departure sentence where the combined period of incarceration and probation exceeded the guideline sentence. MacFarland v. State, 462 So. 2d 496 (Fla. 5th DCA 1984). Given a proper case for departure, there is no reason for a different result where the departure is in the nature of a reduction of sentence rather than an enhancement. In other words, note (d)(12) does not control where the jud…
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
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984)
- Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984)
- Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984)