DAVID S. VANDENEYNDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Vandeneynden appeals his 15-year departure sentence for aggravated battery with a deadly weapon, which exceeded the guideline range of 4.5 to 5.5 years. The court reversed and remanded because the trial court's stated reasons for departure included impermissible factors and failed to require corroborating evidence when Vandeneynden disputed prior convictions on his score sheet.
The sentence must be reversed and remanded because the trial court's departure reasoning was based on impermissible factors including the nature of the offense charged but not convicted and prior record considerations that cannot support guideline departure. Additionally, the trial court must be instructed to require corroborating evidence for disputed prior convictions or strike them from the score sheet. The scoring of victim injury as severe was not an abuse of discretion.
[1] A departure sentence grounded on both permissible and impermissible reasons must be reversed and remanded for resentencing unless the state can show beyond a reasonable d…
[2] A trial court must require the state to produce corroborating evidence when a defendant disputes the truth of hearsay statements contained in a presentence investigatory…
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Join FLexlaw to unlock all legal intelligence“when a departure sentence is grounded on both permissible and impermissible reasons, the sentence should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of impermissible reasons would not have affected the departure sentence”
Establishes the legal standard for reviewing departure sentences that mix permissible and impermissible factors
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Join FLexlaw to unlock all legal intelligenceVandeneynden pleaded guilty to aggravated battery with a deadly weapon (not a firearm). His sentencing score sheet totaled 203 points, recommending 4.…
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COBB, Chief Judge.
David S. Vandeneynden appeals the departure guidelines sentence he received from his conviction of aggravated battery with a deadly weapon not a firearm.
Vandeneynden’s score sheet revealed a total score of 203 points, giving him a recommended sentence of four-and-a-half to five-and-a-half years’ incarceration. The lower court departed from the guidelines sentence and sentenced him to fifteen years’ incarceration. The trial court stated its reasons for departure, as follows:
The defendant, David S. Vandeneynden, pleaded guilty to aggravated battery with a deadly weapon not a firearm, thereby eliminating the minimum mandatory sentence of three years. This defendant shot another human being with premeditated design. His prior criminal record indicates that he is a dangerous offender who needs to be removed from society. He has a prior adult record dating back to 1965. His record includes petit theft, grand theft, burglary, possession of dangerous drugs, forgery, bank robbery and escape. He has clearly demonstrated that he cannot live within the framework of a free society and abide by its laws. Aggravated battery is one of the most dangerous offenses proscribed by our lawmakers. Conviction of aggravated battery, particularly by a prior felon, aggravates a situation in the mind of the public; therefore, this Court finds and determines that it is necessary to go outside the sentencing guidelines and impose a sentence accordingly.
The Florida Supreme Court has recently held that when a departure sentence is grounded on both permissible and impermissible reasons, the sentence should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of impermissible reasons would not have affected the departure sentence. See Brinson v. State, 476 So. 2d 162 (Fla.1985); Brooks v. State, 476 So. 2d 163 (Fla.1985); State v. Carney, 476 So. 2d 165 (Fla.1985); State v. Young, 476 So. 2d 161 (Fla.1985); Albritton v. State, 476 So. 2d 158 (Fla. 1985). In the present case, the trial court’s justification for departing from the guidelines sentence was based on the prior record of Vandeneynden, the nature of the offense for which he was convicted, and the nature of the offense with which he was charged but not convicted. There was no proper basis for departure. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Accordingly, this case must be remanded for resentencing.
Additionally, at the sentencing hearing, when Vandeneynden disputed the existence and degree of a number of convictions included in the score sheet, the trial court did not require the state to present additional proof. It has been repeatedly held that where a defendant disputes the truth of hearsay statements contained in a presentence investigatory report, the court must require the state to produce corroborating evidence. See Eutsey v. State, 383 So. 2d 219 (Fla.1980); Davis v. State, 463 So. 2d 398 (Fla. 1st DCA 1985). Thus, upon remand the trial court is instructed to require the state to produce corroborating evidence or strike the disputed convictions from the score sheet.
Lastly, the appellant contends that the scoring of victim injury as a severe injury was in error. Scoring of victim injury is within the discretion of the trial court judge. See Fla.R.Crim.P. 3.701(d)(7). The trial court had before it the information that the victim was shot directly in the left portion of the chest by a shotgun at extremely close range. Medical bills were over $5,000.00. Given these facts, the trial court did not abuse its discretion.
REVERSED and REMANDED.
DAUKSCH and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (36 total)
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Erickson v. State, 565 So. 2d 328 (Fla. 4th DCA 1990)…ed from the scoresheet, even though they show “dispositions,” as defined by Florida Rule of Criminal Procedure 3.701(d)(5)(a), and may therefore be properly scorable. See Spann v. State, 550 So. 2d 164, 166 (Fla. 2d DCA 1989); Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985). We therefore affirm the judgment of conviction of indecent assault on a child under sixteen, but vacate the sentence and remand for resentencing based on a corrected sentencing guidelines scoresheet in accordance with the views…
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Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986)…g the present offense. The burden was thus put upon the state to present competent corroborating evidence. This was not done. See Eutsey v. State, 383 So. 2d 219 (Fla.1980); Morris v. State, 483 So. 2d 525 (Fla. 5th DCA 1986); Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985). The second and third reasons for departure are also invalid. It has been repeatedly held that the insufficiency of a guideline sentence to punish the wrongdoer is an invalid reason for departure. See Hendrix v. State, 475 So. 2…
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Disinger v. State, 526 So. 2d 213 (Fla. 5th DCA 1988)…ate, 483 So. 2d 539 (Fla. 2d DCA 1986). With respect to the out-of-state convictions, the State must corroborate the degree of convictions which were disputed by appellant. Robbins v. State, 482 So. 2d 580 (Fla. 5th DCA 1986); Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985). The convictions are affirmed, as are the sentences on the sexual battery charges. The sentence on the indecent assault charge is vacated and the cause is remanded for resentencing on that charge. AFFIRMED; One sentence VACATED…
Previewing 3 of 36 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities 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)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- State v. Carney, 476 So. 2d 165 (Fla. 1985)
- State v. Enmund, 476 So. 2d 165 (Fla. 1985)
- State v. Young, 476 So. 2d 161 (Fla. 1985)
- Davis v. State, 463 So. 2d 398 (Fla. 1st DCA 1985)
- Brooks v. State, 476 So. 2d 163 (Fla. 1985)
- Brinson v. State, 476 So. 2d 162 (Fla. 1985)