KENNY DAVIS, 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.
Davis was sentenced above the guidelines range for burglary and battery. The trial court's written reasons for departure improperly relied on prior convictions already factored into the guidelines calculation. The court is reversed and remanded because the only valid oral reason given (violent propensities) was not included in the written sentencing order.
The trial court erred by relying exclusively on prior convictions already computed in the guidelines as its written reason for departure. Although the court orally identified violent propensities as a valid departure reason, this justification was not included in the written sentencing order, and therefore cannot support the departure on appeal.
[1] A defendant's prior criminal convictions cannot be used as a reason for departure from sentencing guidelines if those convictions have already been factored into the pres…
[2] Oral reasons for departing from sentencing guidelines are insufficient; such reasons must be stated in writing.
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“A defendant's prior criminal convictions may not be considered as a reason for departure from the guidelines, if such record has already been factored into the presumptive sentence.”
Establishes the legal principle that prior convictions already computed in the guidelines scoresheet cannot serve as a basis for departure
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavis was charged with burglary of a structure and aggravated battery. After a jury trial, he was convicted of the lesser included offenses of burglar…
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 Written Reasons For Departure cases and more on FLexlaw
ERVIN, Judge.
Davis appeals from a sentence imposed outside of the sentencing guidelines. We reverse and remand for resentencing.
Davis was charged by information with burglary of a structure and aggravated battery. Following a jury trial, Davis was found guilty of the lesser included offenses of burglary of a dwelling and simple battery. A guidelines scoresheet was prepared, recommending Qk-£k years imprisonment.1
At the sentencing proceeding, the trial court departed from the recommended range, sentencing appellant to ten years on the burglary count and one year on the battery count, to run concurrently with the burglary sentence. The reasons orally given for the departure were the following:
The court has exceeded the guidelines because the defendant’s extensive prior record of felonies and demonstration of violent propensities in the commission of this felony indicates an inadequacy of the guidelines; and the limitations of the guidelines are found to be totally inappropriate and inadequate to approach a just disposition.
The court thereafter set out its written reasons for the departure, stating:
[I] [h]ave exceeded guidelines because of defendant’s extensive prior record of felonies and a demonstration of his violent propensities in the commission of these felonies. The guidelines are totally inappropriate and inadequate to approach a just disposition.
As written reasons for departure, the court apparently relied exclusively on the nature and extent of Davis’s prior convictions which had already been taken into account in determining the presumptive sentence under the guidelines.' This was error. A defendant’s prior criminal convictions may not be considered as a reason for departure from the guidelines, if such record has already been factored into the presumptive sentence. Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
We observe that at the sentencing proceeding, the lower court orally found appellant’s violent propensities during the commission of the instant offenses to be a reason for departure from the guidelines. We have consistently found such reason as a valid authorization to depart from the guidelines. Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985); Garcia v. State, 454 So. 2d 714, 717 (Fla. 1st DCA 1984); Johnson v. State, 462 So. 2d 49, 50 (Fla. 1st DCA 1984) (“Such conduct was a sufficient reason for departure from the presumptive guideline sentence, and was properly considered, in accordance with Rule 3.701(b)(3), as ‘circumstances surrounding the offense.’ ”). However, since this justification for departure was not in writing, we may not consider it,2 and are compelled to reverse and remand. See Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984).
Reversed and remanded for resentencing.
JO ANOS and BARFIELD, JJ., concur. . It should be observed that the court improperly assigned appellant 20 points for prior convictions for category 5 offenses. The trial court should have included only ten points for two prior convictions for category 5 offenses. Apparently the court improperly included two pri-or juvenile burglary convictions. See Florida Rule of Criminal Procedure 3.701(d)(5)(c). A corrected scoresheet would have yielded 91 points, which is still within the original recommended range of 3 ½ to 4‘/2 years imprisonment.
. Even if we were allowed to consider appellant’s violent propensities in the commission of this offense as a reason to depart, we would still be constrained to reverse and remand since we cannot conclude beyond a reasonable doubt, based on the record and briefs before this court, that the absence of the invalid reason — use of prior convictions already computed in.the presumptive sentence — would not have affected the departure. Albritton v. State, 476 So. 2d 158 (Fla.1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Moreira v. State, 500 So. 2d 343 (Fla. 3d DCA 1987)…ell as an FBI Agent assisting in the investigation into this kidnap for ransom. Garcia v. State, 455 [454] So. 2d 714 (Fla 1st DCA 1984); Johnson v. State, 462 So. 2d 49 (Fla. 1st DCA 1984); Scurry v. State, 489 So. 2d 25 (Fla.1986); Davis v. State, 476 So. 2d 303 (Fla. 1st DCA 1985); Brinson v. State, [478 So. 2d 1174] (Fla. 2 DCA [1985]). 2. The commission of offense created severe psychological trauma to members of the victim’s family. The testimony established that the defendant tied up and abducted the…
-
Francis v. State, 492 So. 2d 475 (Fla. 4th DCA 1986)…sentence of the defendant because he found that the defendant had frequently possessed weapons and had a propensity for violence. While the use of violence during the commission of the present offense is a valid reason for departure, Davis v. State, 476 So. 2d 303 (Fla. 1st DCA 1985), the “frequent possession of weapons” reason relates impermissibly to previous convictions which should have already been factored into the guidelines sentence. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Therefore, appella…
-
Tarrence L. Smith v. State, 507 So. 2d 788 (Fla. 1st DCA 1987)…By its nature, a robbery, even if armed, can be effectuated with little or no force. The robbery in this case involved an excessive use of force to the degree that a departure from the presumptive guidelines sentence is appropriate. Davis v. State, 476 So. 2d 303 (1st DCA 1985); Stewart v. State, [489] So. 2d [176], 11 FLW 1232 (1st DCA 1986). Further, this Defendant exhibited extreme cruelty toward the victim; whether he actually wielded the knife (as a preponderance of the evidence indicates) or whether he…
Authorities Cited
- 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)
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Onelia Garcia and Matthew Lee Wilson v. State, 454 So. 2d 714 (Fla. 1st DCA 1984)
- Johnson v. State, 462 So. 2d 49 (Fla. 1st DCA 1984)
- Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985)