GARY MARSHALL DIRK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Marshall Dirk appeals his convictions for burglary with assault, robbery, sexual battery, battery on a law enforcement officer, and burglary across three separate proceedings. The court affirms the convictions but reverses the sentences because the trial court relied on legally insufficient reasons for departing from sentencing guidelines.
The court affirms the convictions but reverses the sentences because the trial court relied on legally insufficient reasons for departing from sentencing guidelines. When a trial court uses both valid and invalid reasons for departure, reversal is required unless the appellate court is convinced beyond a reasonable doubt that the sentence was unaffected by the invalid reasons, a test not met here.
[1] A trial court's reason for departing from sentencing guidelines based on a defendant's prior refusal of non-compulsory treatment for a past offense is improper.
[2] Broad and general reasons for departing from sentencing guidelines do not meet the clear and convincing standard required by rule.
Previewing 2 of 3 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“When both valid and invalid reasons are relied upon by a trial court for going outside the sentencing guidelines, an appellate court must reverse unless it is convinced beyond a reasonable doubt that the sentence was not affected by the invalid reasons.”
Establishes the legal standard for reviewing sentencing departures based on mixed valid and invalid reasons
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Join FLexlaw to unlock all legal intelligenceDirk was convicted of multiple serious crimes including burglary with assault, robbery, sexual battery with threat or violence, battery on a law enfor…
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SHARP, Judge.
Dirk appeals from his convictions and sentences for burglary with an assault,1 robbery,2 sexual battery with threat or violence likely to cause personal injury,3 bat tery on a law enforcement officer,4 and burglary.5 The criminal charges were prosecuted in three separate proceedings, but the same trial judge sentenced appellant for all convictions at the same sentencing hearing, using one “scoresheet.”6 This court, however, consolidated the appeals because they have the same sentencing defects, which require reversal. We affirm the convictions.
The trial court gave the same list of fifteen reasons for departing from the presumptive sentence range in these cases.7 Several of the reasons are legally insufficient.8 When both valid and invalid reasons are relied upon by a trial court for going outside the sentencing guidelines, an appellate court must reverse unless it is convinced beyond a reasonable doubt that the sentence was not affected by the invalid reasons.9 Here, that test has not been met.
AFFIRMED IN PART; REVERSED IN PART.
COBB, C.J., and ORFINGER, J., concur. . § 810.02(2)(a), Fla.Stat. (1983), case no. 85-407.
. § 812.13(2)(c), Fla.Stat. (1983), case no. 85-407.
. § 794.011(4)(b), Fla.Stat. (1983), case no. 85-407.
. §§ 784.03, 784.07(1) and (2)(b), Fla.Stat. (1983), case no. 85-403.
. § 810.02(1), Fla.Stat. (1983), case no. 85-256.
. Fla.R.Crim.P. 3.701.d.1. Although no score-sheet is in the record afforded us, the parties agree that one was prepared and discussed at sentencing.
. The trial judge said the presumptive guideline sentence was between 5 and 7½ years, although this was perhaps erroneously based on the burglary rather than the sexual battery grid. In any event, he departed by sentencing Dirk to consecutive sentences of life, 30 years, 15 years (case no. 85-407), and two 5 year consecutive sentences (case nos. 85-256 and 85-403).
. Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984), approved, 476 So. 2d 165 (Fla.1985); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985); Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984).
. Albritton v. State, 476 So. 2d 158 (Fla.1985); State v. Young, 476 So. 2d 161 (Fla.1985).
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Cited By
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Degroat v. State, 489 So. 2d 1163 (Fla. 5th DCA 1986)…71 (Fla. 5th DCA 1986); White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986); Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986); State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986); Brown v. State, 480 So. 2d 225 (Fla. 5th DCA 1985); Dirk v. State, 479 So. 2d 265 (Fla. 5th DCA 1985); Sanchious v. State, 478 So. 2d 1191 (Fla. 5th DCA 1985); Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985).…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- 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)
- Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985)