LARRY D. MCMILLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's grand theft conviction is affirmed, but his sentence is reversed because the trial court improperly considered charges of which he was acquitted when departing from sentencing guidelines.
A trial court commits clear error when it considers elements of crimes for which a defendant was acquitted in justifying a departure from sentencing guidelines.
[1] A trial court may not use elements of crimes for which a defendant was acquitted as a basis for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with burglary, sexual battery, and robbery. He was acquitted of all three charges but convicted of grand theft, a lesser include…
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PER CURIAM.
Defendant was charged with burglary,1 sexual battery,2 and robbery.3 He was acquitted of these offenses, but was found guilty of grand theft,4 a lesser included offense to the robbery charge. At the sentencing phase of the trial, the court indicated in its written justification for departing from the sentencing guidelines that it was considering the charges for which the defendant had been acquitted. This is clear error which, in the case at bar, cannot be deemed harmless. See generally, Fletcher v. State, 457 So. 2d 570 (Fla. 5th DCA 1984) (trial judge cannot use elements of crime for which the defendant was acquitted in departing from the sentencing guidelines); Owen v. State, 441 So. 2d 1111 (Fla. 3d DCA 1983) (defendant’s “premeditation” is an improper basis for sentence enhancement where jury acquitted the defendant of first-degree murder), motion denied, 446 So. 2d 100 (Fla.1984).
Accordingly, the defendant’s conviction for grand theft is affirmed, but the sentence is reversed and the cause is remanded for resentencing consistent with this opinion.
CONVICTION AFFIRMED, SENTENCE REVERSED.
HERSEY, C.J., and HURLEY and DELL, JJ., concur. . § 810.02(2)(b), Fla.Stat. (1983).
. § 794.011(3), Fla.Stat. (1983).
. § 812.13(2)(a), Fla.Stat. (1983).
. § 812.014(2)(b)(l), Fla.Stat. (1983).
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Berry v. State, 511 So. 2d 1075 (Fla. 1st DCA 1987)…ture sentence. Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986); Baxter v. State, 488 So. 2d 647 (Fla. 5th DCA 1986); Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA 1986); Padgett v. State, 497 So. 2d 724 (Fla. 1st DCA 1986); McMillan v. State, 478 So. 2d 1195 (Fla. 4th DCA 1985); and Rease v. State, 485 So. 2d 5 (Fla. 1st DCA 1986). The next reason, the trial court’s belief that the appellant would have committed a sexual battery if the victim’s fi-nancé had not fortuitously arrived on the scene, is als…
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McCULLUM v. State, 498 So. 2d 1374 (Fla. 3d DCA 1986)…arture since legal constraint was already factored into guidelines scoresheet or considered under Fla.R.Crim.P. 3.701(d)(14)); Pilgrim v. State, 480 So. 2d 688 (Fla. 5th DCA 1985) (defendant’s lack of remorse not a proper reason); McMillan v. State, 478 So. 2d 1195 (Fla. 4th DCA 1985) (charges for which defendant was acquitted at sentencing not properly considered); Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985) (defendant’s perjury which was not a charged offense was not properly considered); Scott v.…
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Johnson v. State, 524 So. 2d 1153 (Fla. 3d DCA 1988)…They relate entirely to a crime for which the defendant was acquitted by the jury, and plainly, cannot be used as reasons for departing from the sentencing guidelines on the crime for which the defendant was convicted. See, e.g., McMillan v. State, 478 So. 2d 1195 (Fla. 4th DCA 1985). The final judgment of conviction is, accordingly, affirmed, but the sentence under review is reversed, and the cause is remanded to the trial court with directions to resentence the defendant within the sentencing guidelines.…
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
- Owen v. State, 441 So. 2d 1111 (Fla. 3d DCA 1983)
- Dorion Fletcher v. State, 457 So. 2d 570 (Fla. 5th DCA 1984)