ROBERT GENE FRANCIS, 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.
The trial court departed from Florida sentencing guidelines for aggravated battery on three grounds. The court erred in relying on victim injury and prior record as departure reasons since these factors are already incorporated into the guidelines calculation. While the court's consideration of specific facts surrounding the offense was permissible, the sentence must be reversed and remanded for resentencing because the impermissible reasons may have influenced the departure.
The trial judge improperly relied on victim injury and prior record as departure grounds because these factors are already factored into the guidelines calculation. While factual circumstances of the offense may constitute a permissible departure reason, the sentence must be reversed and remanded because the state failed to show beyond a reasonable doubt that the impermissible reasons did not affect the departure sentence.
[1] A defendant's prior criminal convictions may not be considered as a reason for departure from sentencing guidelines if such record has already been factored into the pres…
[2] A court's oral justification for departing from sentencing guidelines, if not reduced to writing, cannot be considered on appeal.
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“Victim injury and prior record are already factored in the guidelines to arrive at a presumptive sentence...Thus it was error for the trial judge to reconsider these same two factors to justify departure from the guidelines.”
Establishes that factors already incorporated in guideline calculations cannot serve as independent departure reasons.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRobert Gene Francis was convicted of aggravated battery. He attacked an unsuspecting, unarmed victim using a dangerous instrument, inflicting a near l…
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 Clear and Convincing cases and more on FLexlaw
DANAHY, Judge.
The trial judge departed from the sentencing guidelines when he sentenced appellant for aggravated battery. The trial judge based his departure on three grounds: (1) the extent or severity of the attack on the victim; (2) the appellant’s past record; and (3) the factual basis or circumstances surrounding the aggravated battery. On appeal, appellant challenges the validity of these grounds.
We agree that grounds (1) and (2) are impermissible reasons for departing from the guidelines. Victim injury and pri-or record are already factored in the guide lines to arrive at a presumptive sentence. Fla.R.Crim.P. §§ 3.701(b)(3}-(4), 3.701(d)(2)-(5), 3.701(d)(7), and 3.988(d). Points assessed under victim injury and prior record were utilized in calculating appellant’s total guidelines score and in arriving at his recommended sentence. Thus it was error for the trial judge to reconsider these same two factors to justify departure from the guidelines. Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
The third ground, however, arguably constitutes a permissible reason for exceeding the recommended sentencing range. Although no specific facts are alluded to in the written order, at sentencing the trial judge commented at length on the facts and circumstances involved in this case. The trial judge was particularly concerned with the fact that appellant, after gaining proficiency with an extremely dangerous instrument, used that instrument to inflict a near lethal blow against the unsuspecting and unarmed victim who had done him no harm. Thus it becomes apparent that the trial judge’s reference to “the factual basis for the charge” refers to appellant’s actions in the commission of the instant offense. The trial judge was equally concerned that the blow left the victim with over $90,000 in medical expenses and in need of continuing medical care and daily assistance for his permanent injury. Consideration of facts and circumstances such as these does not violate Florida Rule of Criminal Procedure 3.701(d)(ll) and may therefore provide a clear and convincing reason for departure. Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984); Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984); Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984); Garcia v. State, 454 So. 2d 714 (Fla. 1st DCA 1984); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984), approved, 469 So. 2d 128 (Fla.1985).
Summarizing, we find that the departure in this case is grounded on both permissible and impermissible reasons. In such a case, our supreme court has recently held that “the sentence should be reversed and the ease remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence.” Albritton v. State, 476 So. 2d 158 (Fla.1985). Because we are unable to determine under the reasonable doubt standard that the impermissible reasons did not affect the departure sentence, we reverse appellant’s sentence and remand for resentencing.
REVERSED AND REMANDED.
GRIMES, A.C.J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986)…onviction “which triggers the operation of the act.” Id. Thus, the habitual offender sentence can readily be differentiated from pre-Hendrix departure sentences which were bottomed solely on the fact of prior conviction. See, e.g., Francis v. State, 475 So. 2d 1366 (Fla. 2d DCA 1985). The habitual offender sentence, by contrast, follows from the subsequent offense coupled with “identifiable discrete facts such as general course of [*717] behavior, ... family, ... education, vocation and so on.” Eutsey, 383 So.…
-
Brown v. State, 481 So. 2d 1271 (Fla. 5th DCA 1986)…cannot determine how much weight the trial court placed on the eleven impermissible reasons in departing from the guidelines, we remand the case for resentenc-ing." Id. See also Glover v. State, 474 So. 2d 886 (Fla. 1st DCA 1985); Francis v. State, 475 So. 2d 1366 (Fla. 2d DCA 1985); Allen v. State, 476 So. 2d 309 (Fla. 2d DCA 1985); but see Ochoa v. State, 476 So. 2d 1348 (Fla. 2d DCA 1985); Smith v. State, 479 So. 2d 804, 808 (Fla. 1st DCA 1985) (permissible reasons for departure not sufficient for applicat…
-
Murray v. State, 512 So. 2d 1136 (Fla. 2d DCA 1987)…nticipated. 2. The offense occurred approximately seven days after the Defendant was released from the Eckerd Youth Development Center where he had been committed by the juvenile court January 24, 1985. As to reason number 1, see Francis v. State, 475 So. 2d 1366 (Fla. 2d DCA 1985), Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984). As to reason number 2, see Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986). We believe that the state has shown beyond a reasonable doubt that the departure sentence would not h…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Onelia Garcia and Matthew Lee Wilson v. State, 454 So. 2d 714 (Fla. 1st DCA 1984)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- Sherman v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984)
- Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984)
- State v. Herlovich, 455 So. 2d 1317 (Fla. 2d DCA 1984)