DAN GARDENER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dan Gardener appeals his conviction for cocaine sales, challenging the trial court's departure from sentencing guidelines by imposing 30 months imprisonment instead of the recommended non-state prison sanction. The appellate court affirmed the conviction and sentence, holding that the trial court properly considered aggravating circumstances related to the offense and the defendant's abuse of his position of trust as a teacher.
The court affirmed the sentence, holding that Florida Rule 3.701(d)(11) does not prohibit courts from considering aggravating circumstances and the defendant's actions in committing the offense as a basis for guideline departure, and that the departure was based on abuse of position of trust rather than impermissible consideration of social status.
[1] A trial court may depart from sentencing guidelines based on aggravating circumstances and actions of the accused in the commission of the offense.
[2] A trial court's written statement of reasons for departing from sentencing guidelines may consider the defendant's abuse of a position of trust.
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) "does not prohibit the court from considering aggravating circumstances and actions of the accused in the commission of the offense ... as a basis for departure from the guidelines."”
Establishes that sentencing courts may depart from guidelines based on aggravating circumstances related to how the offense was committed.
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Join FLexlaw to unlock all legal intelligenceGardener, a schoolteacher, was convicted of selling cocaine in violation of Florida Statutes section 893.13(l)(a)(l). The sentencing guideline workshe…
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PER CURIAM.
The defendant, Dan Gardener, appeals a final judgment adjudicating him guilty of the sale of cocaine in violation of section 893.13(l)(a)(l), Florida Statutes (1981). We affirm.
We deem it appropriate to discuss only one of defendant’s points on appeal: that the trial court erred in departing from the sentencing guidelines. The sentencing guideline worksheet indicated that the defendant had a total of 65 points which, under the guidelines, called for a recommended sentence of any non-state prison sanction. However, the court departed from the guidelines and imposed a 30-month sentence with five years probation to follow and fined the defendant $10,000 plus $500 as the surcharge required by section 960.25, Florida Statutes (1981).
In departing from the guidelines, the trial judge, in accordance with rule 3.701(d)(ll), delineated in a written statement his reasons for departure:
The defendant is a teacher. He sold cocaine. Tapes indicate he was doing business on school property. He talked about laughing all the way to the bank indicating pure greed and utter disregard for the high position of trust given to him, especially in the eyes of his children students.
On appeal, the defendant argues that pursuant to rule 3.701(d)(ll), factors relating to the offense should not be included in computing the sentence. We disagree. In Smith v. State, 454 So. 2d 90, 91 (Fla. 2d DCA 1984), this court concluded that rule 3.701(d)(ll) “does not prohibit the court from considering aggravating circumstances and actions of the accused in the commission of the offense ... as a basis for departure from the guidelines.” See also Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984).
The defendant also argues that the departure from the guidelines was based on his social status, in violation of rule 3.701(b)(1), Florida Rules of Criminal Procedure. This argument is also without merit. The trial judge in his written statement did not base the reasons for departure on the defendant’s social status, i.e., the fact that he was a schoolteacher; rather, the principal basis for departure was the defendant’s abuse of his position of trust.
AFFIRMED.
GRIMES, A.C.J., and OTT and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Hankey v. State, 485 So. 2d 827 (Fla. 1986)…retion by departing from the guidelines on the basis of emotional hardship on the victim. Breach of trust may constitute a clear and convincing reason to justify departure. See Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985); Gardener v. State, 462 So. 2d 874 (Fla. 2d DCA 1985). The guidelines do not explicitly prohibit the trial judge from departing on the basis of breach of trust, breach of trust is not an inherent component of the crime of burglary, and breach of trust is not already considered in the…
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Davis v. State, 517 So. 2d 670 (Fla. 1987)…5 So. 2d 827 (Fla.1986) (burglary victim gave defendant job and entrusted him with key to fulfill duties and defendant abused position by using key to enter place of business after hours and steal money and items of value); Gardener [*674] v. State, 462 So. 2d 874 (Fla. 2d DCA 1985) (teacher abused position of trust by selling cocaine on school property). See also Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA), review denied, 479 So. 2d 118 (Fla.1985). In each of the these cases, the crime committed was direc…
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Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985)…We can hardly therefore hold that the trial court abused his discretion in concluding that Steiner’s conduct, which violated these common and surely not unreasonable “societal concerns,” justified a departure from the guidelines. Gardener v. State, 462 So. 2d 874 (Fla. 2d DCA 1985); Williams v. State, 454 So. 2d 751 (Fla. 1st DCA 1984); contra Mischler, supra (“common” embezzlement does not justify departure in theft case).10 Long Range Planning. 1. The second ground stated, that the crime was not spontaneo…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)