MICHAEL ANGELO AGATONE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that past violent crimes can be a sufficient basis for departing from sentencing guidelines, even if another stated reason for departure is invalid.
Appellant was sentenced for first-degree arson, with the trial court departing from sentencing guidelines based on the appellant being a devious perso…
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HALL, Judge.
The trial court departed from the sentencing guidelines when it sentenced appellant for first-degree arson. The trial judge based the departure on two grounds: (1) that appellant was a devious person who committed perjury before the court and (2) that appellant committed several violent crimes in the past and thus posed a danger to the community. On appeal appellant challenges the validity of these grounds.
We agree with appellant that the first ground is not a valid reason for aggravating the sentence, especially considering that appellant was never convicted of perjury. Sloan v. State, 472 So. 2d 488, (Fla. 2d DCA 1985). However, we think the court’s reference to appellant’s past violent crimes constituted a sufficient basis for the determination that appellant was a danger to the community. This same reasoning provided sufficient justification for exceeding the presumptive guideline sentence.
This court has held that even one clear and convincing reason is sufficient to uphold a trial court’s departure from the guidelines. Griffin v. State, 470 So. 2d 103 (Fla. 2d DCA 1985); Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA 1985); Williard v. State, 462 So. 2d 102 (Fla. 2d DCA 1985); Webster v. State, 461 So. 2d 965 (Fla. 2d DCA 1984). We therefore affirm appellant’s sentence, but in accordance with our prior decisions in Griffin and Brinson v. State, 463 So. 2d 564 (Fla. 2d DCA 1985), we recertify to the supreme court the following question as one of great public importance:
WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN REACHING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO DETERMINE IF THOSE REASONS JUSTIFY A DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENCING?
Affirmed.
RYDER, C.J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986)…quantity of drugs involved in an offense is a valid reason for departure. Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985). The court’s second reason, that appellant lied during his testimony, is an improper reason for departure. Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985). The court found that appellant was part of a large scale, sophisticated drug smuggling operation. The only evidence to suggest this finding is a tape recorded telephone conversation between appellant’s codefendant and an underco…
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Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985)…d as the basis of the departure. We agree with appellant that the first ground is not a valid reason for departure, especially since appellant was never convicted of perjury. Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985); Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985). The quantity of drugs involved in the offense is a proper circumstance to be considered in departing from a recommended sentence since it is a factor relating to the instant offense. Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 198…
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Fuller v. State, 488 So. 2d 594 (Fla. 2d DCA 1986)…able doubt whether the invalid reasons affected the court’s departure. Should the trial court again determine to depart from the guidelines, it should be guided by the following cases. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985). CAMPBELL, A.C.J., and SCHOON-OVER, J., concur.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)
- Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA 1985)
- Williard v. State, 462 So. 2d 102 (Fla. 2d DCA 1985)
- Keithie's Roofing Co. Inc. v. LEE Parks Apts., Inc., 461 So. 2d 965 (Fla. 3d DCA 1984)
- Benny Lee Webster v. State, 461 So. 2d 965 (Fla. 2d DCA 1984)
- Brinson v. State, 463 So. 2d 564 (Fla. 2d DCA 1985)
- Herndon W. Jones, Jr. v. Jones, 463 So. 2d 564 (Fla. 1st DCA 1985)
- Griffin v. State, 470 So. 2d 103 (Fla. 2d DCA 1985)