HUMBERTO HERNANDEZ NAPOLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court failed to provide sufficiently clear and convincing reasons for departing from the sentencing guidelines.
Appellant was sentenced to 18 months, departing from the guidelines recommendation of a nonstate prison sanction. The trial court provided six reasons…
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PER CURIAM.
Appellant challenges the trial court’s departure from the recommendation of the sentencing guidelines, urging that the court failed to provide sufficiently clear and convincing reasons for its departure as required by Fla.R.Crim.P. 3.701 d.ll. We reverse.
The Court imposed an 18 month sentence rather than following the guidelines recommendation of “any nonstate prison sanction.” We agree that five of the six reasons for departure provided by the trial court by way of a “checklist” are inadequate. Alford v. State, 460 So. 2d 1000 (Fla. 1st DCA 1984). The remaining reason checked: “Number of times offender previously given probation after conviction,” merits some discussion. The reason is clearly improper as the record reveals that appellant had been on probation only once: at the time he committed the instant offense. The guidelines computation sheet reflects that this fact was already taken into consideration in computing the recommended sentence. Therefore, it should not be utilized as an aggravating factor in departing from the guidelines. Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985).
Although in Alford, this court looked with disfavor upon the use of a “checklist” or “laundry list” when stating reasons for departing from the sentencing guidelines, the fact that such a list was used does not compel reversal. However, since five of the reasons given for departure fall short of being clear and convincing and the remaining reason is improper, the appellant’s sentence should be vacated and the cause remanded for resentencing.
Accordingly, the sentence is REVERSED.
WENTWORTH, THOMPSON and WIG-GINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williams v. State, 492 So. 2d 1308 (Fla. 1986)…rial judge may not depart from the guidelines based on a factor which has already been weighed in arriving at a presumptive sentence. State v. Mischler, 488 So. 2d 523 (Fla.1986); Hendrix v. State, 475 So. 2d 1218, 1220 (Fla.1985); Napoles v. State, 463 So. 2d 478, 479 (Fla. 1st DCA 1985). It is also improper to depart based on the trial court’s perception that the recommended sentence under the guidelines is not commensurate with the seriousness of the crime. The raison d’etre of the sentencing guidelines i…
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Brooks v. State, 466 So. 2d 1182 (Fla. 1st DCA 1985)…om the guidelines must relate to the facts and circumstances of the crime in question and may not be simply vague and uncertain statements taken from a laundry list of reasons. Alford v. State, 460 So. 2d 1000 (Fla. 1st DCA, 1984); Napoles v. State, 463 So. 2d 478 (Fla. 1st DCA, 1985). We hold that this court’s reason for departing from the guidelines taken from a preprinted list of reasons, were not clear and convincing because they did not relate to the points of the case. Affirmed in part and reversed and…
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Corum v. State, 484 So. 2d 102 (Fla. 1st DCA 1986)…hat we cannot reasonably be expected to properly perform our review function where the reasons given for departure are abbreviated in the extreme as in the instant case. Compare Alford v. State, 460 So. 2d 1000 (Fla. 1st DCA 1984); Napoles v. State, 463 So. 2d 478 (Fla. 1st DCA 1985). Even were we to consider the transcript of the sentencing hearing as an aid in explaining what the judge meant, compare Hall v. State, 478 So. 2d 385 (Fla. 2nd DCA 1985), the transcript in the instant case is of no help in that…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985)
- Alford v. State, 460 So. 2d 1000 (Fla. 1st DCA 1984)