RONALD W. BOWMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ronald Bowman appealed his sentence for a second burglary conviction, arguing that the trial court improperly departed upward from Florida's sentencing guidelines by relying on factors already considered in calculating his guidelines score. The First District Court of Appeal affirmed the sentence, holding that a defendant's prior record and status as a parolee could properly support a guidelines departure even if those factors contributed to the overall score.
The court held that the trial court properly departed upward from the guidelines. The use of Bowman's prior criminal record (one felony and two misdemeanors) combined with his status as a parolee for the same crime (burglary) at the time of the second offense constituted a proper basis for deviating from the guidelines, even though these factors contributed to the overall guidelines score.
[1] A trial court may depart from recommended sentencing guidelines when the defendant commits an offense while on parole for a prior offense.
[2] A trial court may depart from recommended sentencing guidelines when the defendant has been unsuccessful on parole or probation supervision.
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“The use of Bowman's prior record, as shown by one felony and two misdemeanors, together with the fact he was on parole for the same crime (burglary) at the time he committed the second offense was a proper basis for deviating from the guidelines.”
Establishes that prior record and parolee status can support upward departure even if considered in guidelines scoring
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Join FLexlaw to unlock all legal intelligenceBowman, while on parole for a prior burglary conviction, committed a second burglary. He pleaded guilty to burglary of a structure (third degree felon…
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THOMPSON, Judge.
Bowman appeals his sentence, contending that the trial court erred in imposing a sentence that exceeded the recommended guidelines sentence. We affirm.
The appellant, while on parole from a prior sentence imposed pursuant to a conviction for burglary, committed a second burglary. He pled guilty to this second burglary pursuant to a plea bargain under which the state agreed to reduce the burglary of a dwelling charge to burglary of a structure, a third degree felony, and to recommend to the court that any sentence imposed for the second burglary run concurrent to the sentence he was already serving. Bowman elected guidelines sentencing, and received 20 points for the conviction, 6 points for a prior third degree felony conviction (the first burglary), 2 points for prior misdemeanors, 5 points because the prior burglary offense was a category five offense, and 10 points for being under legal constraint at the time he committed the second burglary. His total score of 43 points resulted in a recommended guidelines sentence of “any non-state prison sanction.” Notwithstanding the state’s recommendation for concurrent sentencing, the trial judge departed from the guidelines and sentenced Bowman to three years to run consecutively to the prior sentence. The written reasons given by the trial judge for departing from the guidelines were that the offense was committed while appellant was on parole for a prior offense of burglary, that he had been unsuccessful on parole and probation supervision, that he had committed the same crime for which he was previously sentenced to the Department of Corrections, and that he was serving time in the Department of Corrections for a burglary charge.
Bowman contends that the reasons given for the trial judge’s departure from the guidelines have already been taken into consideration in calculating his guidelines score, and therefore cannot again be considered as a basis for departure. We disagree. The use of Bowman’s prior record, as shown by one felony and two misdemeanors, together with the fact he was on parole for the same crime (burglary) at the time he committed the second offense was a proper basis for deviating from the guidelines. Dickey v. State, 458 So. 2d 1156 (Fla. 1st DCA 1984).
AFFIRMED.
WIGGINTON, J., concurs.
WENTWORTH, J., concurs specially.
WENTWORTH, Judge,
concurring specially.
I agree with the conclusion to affirm because the trial court’s specification of characteristics of appellant’s pattern of pri-or convictions constitutes a statement of clear and convincing reason for departure from the guidelines. That conclusion is not, however, equivalent to holding that the same “reasons” which have already been considered in calculating a guidelines score may “again be considered as a basis for departure.”
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Citator
Cited By
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Simmons v. State, 483 So. 2d 530 (Fla. 1st DCA 1986)…denced by his prior conduct. We find reasons 2, 3, and 4 to be valid. See Scott v. State, 469 So. 2d 865 (Fla. 1st DCA 1985); Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984)., Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984); Bowman v. State, 465 So. 2d 1326 (Fla. 1st DCA 1985). We find in reason number 1 that reference to appellant’s being placed on probation for the instant offense is not error. Sentencing in this case related only to the 1981 offense of possession, and the guidelines scoresheet only…
Authorities Cited
- Winford Lee Dickey v. State, 458 So. 2d 1156 (Fla. 1st DCA 1984)