ALPHONSE MCBRIDE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alphonse McBride appealed his fifteen-year sentence for robbery without a deadly weapon, arguing the trial court improperly imposed an aggravated sentence departing significantly from Florida's sentencing guidelines. The Fourth District Court of Appeal reversed and remanded, finding the trial judge relied on invalid grounds for departure and abused its discretion by exceeding the guideline sentence by five times.
The trial court abused its discretion in departing from the guidelines. Prior convictions, defendant's testimony at trial, and the possibility of future criminal conduct are not valid grounds for sentencing deviation. Even where departure is legally justified, exceeding the guideline sentence by five times is an unreasonable exercise of discretion.
[1] Prior convictions are not a valid ground for departing from sentencing guidelines.
[2] A defendant's perceived dishonesty during trial is not a valid ground for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“A sentencing court may not use prior convictions as a ground for deviation from the guidelines.”
Establishes the primary error in the trial court's sentencing decision
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Join FLexlaw to unlock all legal intelligenceMcBride, an admitted transvestite engaged in prostitution, was convicted of robbery without a firearm or deadly weapon. He had prior convictions for c…
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DOWNEY, Judge.
From a conviction of robbery without a firearm, or other deadly weapon, appellant seeks reversal of the trial court’s imposition of an aggravated sentence of fifteen years in prison.
Appellant, an admitted transvestite, was engaged in prostitution when the crime involved here was committed. He had a history of convictions for carrying a concealed firearm, robbery, and petit theft. The trial judge elected to depart from the guidelines sentence of thirty months to three and one-half years’ imprisonment and sentenced appellant to fifteen years because of appellant’s prior convictions, the fact that he lied at trial, and the judge’s belief he would repeat his pattern of unlawful conduct.
The sole point on appeal is whether the trial court erred in departing from the sentencing guidelines and in imposing the maximum sentence allowed by law.
A sentencing court may not use pri-or convictions as a ground for deviation from the guidelines. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985); Callaghan v. State, 462 So. 2d 832 (Fla. 4th DCA 1984). The trial judge’s belief that the defendant lied in his defense at trial is also not an accepted ground for deviation. Kossow v. State, 468 So. 2d 1104 (Fla. 2d DCA 1985). Further, we held in Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1985), that the possibility of defendant’s committing further crimes does not constitute a valid ground for departing from the guidelines. See also Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984).
Next, we treat the extent of the deviation from the guideline sentence. As stated above, the guideline sentence was thirty months to three and one-half years. So the sentence imposed exceeds the guideline sentence by five times. We learned from Albritton v. State, 476 So. 2d 158 (Fla.1985), that the maximum statutory-punishment allowed by law is not the only lawful limitation on the extent of departure from a guidelines sentence. The standard of review is whether the trial judge abused his discretion in the extent of the deviation. In making that determination the reviewing court should look at the indicated guidelines sentence, the extent of the departure, the reasons given therefor, and the record, and upon that inquiry assess the reasonableness of the court’s exercise of its discretion. Id. Following that rubric, we hold the trial judge abused his discretion in exceeding the guidelines sentence by five times.
Thus, we must reverse the sentence and remand the cause to the trial court for resentencing. If, on resentencing, the trial judge departs from the guidelines, his grounds must be put in writing. State v. Jackson, 478 So. 2d 1054 (Fla.1985); Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985).
HERSEY, C.J., and BARKETT, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Keys v. State, 500 So. 2d 134 (Fla. 1986)…n factored into the guidelines. Further, to the extent that this reason is based upon the trial court’s speculation that petitioner will commit crimes in the future, this does not constitute a valid reason for departure. See, e.g., McBride v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985). Even assuming that the fifth and final reason cited by the trial court, petitioner’s inability to live in an unstructured environment, is a clear and convincing reason, it is unsupported by the facts. It was ten years from peti…
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Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)…retion. Canakaris, 382 So. 2d at 1203. In view of the written reasons for departure and the record in this case, we cannot say that it was unreasonable for the trial judge to sentence the defendant as he did in this case. But see McBride v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985), holding that the trial judge abused his discretion in exceeding the guidelines sentence by five times. The supreme court’s ruling in Albritton has assigned the district courts of appeal the arduous task of determining whether a…
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Hipp v. State, 509 So. 2d 1208 (Fla. 4th DCA 1987)…tly been condemned as a basis for departure by the supreme court in Whitehead v. State, 498 So. 2d 863 (Fla.1986). Furthermore, the possibility of the prisoner committing future crimes has been held an invalid ground for departure. McBride v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985); Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984). Finally, the psychological trauma to the victim associated with a sexual battery has been held generally not to be a valid reason for departure because “nearly all sexual batte…
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
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- 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)
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
- Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985)
- Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984)
- Kossow v. State, 468 So. 2d 1104 (Fla. 2d DCA 1985)
- Callaghan v. State, 462 So. 2d 832 (Fla. 4th DCA 1984)