GEORGE ALLEN MCGOUIRK, 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.
McGouirk appealed his sentence for consecutive minimum mandatory sentences, arguing they violated the Palmer v. State decision. The court affirmed, holding that Palmer's rationale does not apply when consecutive mandatory sentences are imposed under the sentencing guidelines, since parole is unavailable for guideline sentences.
The court affirmed the consecutive minimum mandatory sentences because Palmer's rationale—that stacking creates unintended parole ineligibility—does not apply when sentencing under the guidelines, since parole is not available for guideline sentences. The trial court also properly departed from guidelines for clear and convincing reasons.
[1] A defendant properly preserves a sentencing guidelines issue for appeal by contemporaneously objecting to the sentence.
[2] The nature of a crime can constitute a clear and convincing reason for a trial court to depart from 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“the reason expressed by the court for its departure, that the crime was "grotesque," showing "utter disregard for human [life]," is clear and convincing”
Establishes that the trial court properly justified its departure from sentencing guidelines
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcGouirk was sentenced to consecutive minimum mandatory sentences under Florida Statutes sections 775.087(2) and 790.161(3). The trial court imposed t…
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 Parole Ineligibility cases and more on FLexlaw
MILLS, Judge.
McGouirk has filed a timely motion for rehearing alleging that our opinion of 13 May 1985 affirming the trial court’s imposition of consecutive minimum mandatory sentences overlooked Palmer v. State, 438 So. 2d 1 (Fla.1983), which held such sentences impermissible. Because the application of the Palmer decision was not specifically discussed in our previous opinion, that opinion is withdrawn and the following substituted therefor. McGouirk appeals a sentence imposed outside the sentencing guidelines. He also contends that the trial court erred in imposing consecutive minimum mandatory sentences. We affirm.
First of all, we reject the State’s contention that McGouirk did not properly preserve the guidelines issue for appeal by contemporaneously objecting to his sentence. See Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); Thomas v. State, 461 So. 2d 234 (Fla. 1st DCA 1984).
We further find that the reason expressed by the court for its departure, that the crime was “grotesque,” showing “utter disregard for human [life],” is clear and convincing. See Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984) (the nature of the crime can be considered as a reason for departure).
The trial court did not err in imposing consecutive mandatory minimum sentences under Sections 775.087(2) and 790.-161(3), Florida Statutes (1983). McGouirk alleges that such sentences were rendered impermissible by Palmer v. State, supra. However, the rationale behind this decision was that, because eligibility for parole was proscribed for the period of the mandatory sentence, “stacking” such sentences would result in parole ineligibility for a longer period than intended by the legislature. Such a concern does not exist when sentence is imposed using the guidelines, because parole is not available for persons sentenced thereunder. See Rule 3.701(b)(5), Florida Rules of Criminal Procedure.
Therefore, because the rationale of the Palmer decision renders it inapplicable when sentencing under the guidelines, we find that it does not operate to forbid the consecutive mandatory minimum sentences imposed in this case.
AFFIRMED.
NIMMONS, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
McGOUIRK v. State, 493 So. 2d 1016 (Fla. 1986)…ADKINS, Justice. In McGouirk v. State, 470 So. 2d 31 (Fla. 1st DCA 1985), the First District affirmed the defendant’s sentence imposed in excess of the recommended guidelines sentence and the trial court’s imposition of consecutive mandatory minimum sentences for separate offenses arising out of a sin…
-
Jakubowski v. State, 494 So. 2d 277 (Fla. 2d DCA 1986)…On balance, this seems the better rule and the reason is valid if properly stated. We note that the particular, cruelty and cold-bloodedness of a crime, Davis v. State, 489 So. 2d 754 (Fla. 1st DCA 1986), or its grotesque nature, McGouirk v. State, 470 So. 2d 31 (Fla. 1st DCA 1985), have been found to be valid reasons for departure. 2. This child was burned over thirty percent of his body, and testimony was that he would have been in excruciating pain and suffered a great deal prior to his death which came…
-
Perez v. State, 485 So. 2d 24 (Fla. 1st DCA 1986)…a. 4th DCA 1985). Defendant’s failure to contemporaneously object to the trial court’s stated reason for departure does not vitiate his right to appeal the issue to this court. Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); McGouirk v. State, 470 So. 2d 31 (Fla. 1st DCA 1985). Accordingly, the sentence imposed by the trial court is vacated and the matter is remanded for entry of a sentence within the range recommended by the sentencing guidelines. On remand, the court is also instructed to correct t…
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
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984)
- Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984)
- Alton Ray Thomas v. State, 461 So. 2d 234 (Fla. 1st DCA 1984)