STATE OF FLORIDA, APPELLANT,
v.
ROSE MAE BENTLEY, APPELLEE
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Florida appeals a trial court's downward departure from a guideline sentence for robbery. The appellate court reverses, finding the trial judge's reasons for departure insufficient under sentencing law and directing resentencing with corrected guideline calculations.
The trial court's reasons for departure were insufficient. The court held that an existing sentence is grounds for aggravation, not mitigation; the defendant's age of 22 was within typical range for robbers and lacked clear context; undefined references to 'education' were unhelpful; cooperation was unsupported by the record; and pregnancy was irrelevant given the defendant already faced a seven-year sentence.
[1] A downward departure from a guideline sentence is not permissible based on the defendant's prior sentence for similar crimes.
[2] A defendant's age, education, and remorsefulness may be considered for a downward departure from a guideline sentence.
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Join FLexlaw to unlock all legal intelligence“As to the first — that appellant is already under a seven year sentence — that is a ground for aggravation not mitigation.”
Establishes that the trial court's primary stated reason for downward departure (existing sentence) actually supports aggravation, not mitigation.
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Join FLexlaw to unlock all legal intelligenceRose Mae Bentley, a 22-year-old defendant, was sentenced with a downward departure from the sentencing guidelines. The trial court cited multiple reas…
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DAUKSCH, Judge.
This is an appeal from a downward departure from a guideline sentence.
The reasons given for the departure were that “Defendant is under a seven year sentence for similar crimes; defendant’s age, education and remorsefulness; defendant’s good attitude and cooperation; also is eight months’ pregnant.”
The reasons given are not sufficient to allow a departure. As to the first — that appellant is already under a seven year sentence — that is a ground for aggravation not mitigation. As to appellant’s age — she was a twenty-two year old robber. The trial judge did not say whether he considered that young for a robber or old for a robber. In our experience it is probably in the upper median range. Most robbers seem to range from fourteen to twenty-five or thirty. We have no idea what the judge meant by “education.” Too much? Too little? Wrong kind? We do not have a pre-sentence report to review but suggest education should have little bearing on a sentence for a robber. Remorsefulness is an appropriate, albeit quite easily feigned, consideration. The record reveals no support for the finding of cooperation. Pregnancy has no bearing here because the appellant is already under a seven year sentence.
We note that the sentencing guideline scoresheet gives appellant 232 points. That number is grossly excessive and upon resentencing the trial judge should recompute the score. When that occurs appellant will likely be entitled to the same sentence she got originally. All of which demonstrates that a little more attention to proper procedure and legal requirements at the trial level in the first place would have prevented the entire expensive appellate procedure.
REVERSED and REMANDED.
ORFINGER, J., and KIRKWOOD, L.R., Associate Judge, concur.
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State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985)…on before. He admits fully his guilt; is willing to suffer the consequences for his action and pay his debt to society. Minimal force was used and no injury resulted. We deem those reasons to be legally insufficient. As we said in State v. Bentley, 475 So. 2d 255 (Fla. 5th DCA 1985), we do not consider twenty-three years of age to be a young age for a robber. That is not a clear and convincing reason for departure. No cooperation in the sense of assistance in solving crimes, etc., is shown in the record. Mer…
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State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986)…ing occurred after July 1, 1984, that should be factored under Florida Rule of Criminal Procedure 3.701(d)(14). While the youth of a defendant in a given case may constitute a clear and convincing reason for downward departure, see State v. Bentley, 475 So. 2d 255 (Fla. 5th DCA 1985); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985), in this case it is combined with an impermissible reason so the sentence must be vacated for the reasons set forth in Albritton v. State, 476 So. 2d 158 (Fla.1985). See DeVan…
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State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986)…eparture. State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985), rehearing granted, (Fla. 5th DCA Jan. 30, 1986). Thus, this reason too, like the first reason refers to his “good record” which is not a reason for departure. See also State v. Bentley, 475 So. 2d 255 (Fla. 5th DCA 1985). In addition to the failure of the third reason to be a clear and convincing reason for departure, it is obviously not supported by the record. Any person who sexually abuses his 13 year old daughter obviously lacks stability in…
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