JOHN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Smith appeals his 15-year prison sentence for cocaine possession with intent to sell, which departed substantially from sentencing guidelines. The court affirmed the trial judge's decision to depart from guidelines based on Smith's escalating pattern of serious offenses, but reversed as to the extent of the departure, finding the jump from the second to ninth sentencing cell constituted an abuse of discretion.
The court held that the trial judge properly departed from guidelines based on the defendant's escalating pattern of increasingly serious offenses, but that the extent of the departure—jumping from the second to the ninth sentencing cell—constituted an abuse of discretion requiring remand for resentencing within the fourth cell.
[1] A trial court may depart from sentencing guidelines when a defendant demonstrates an escalating pattern of more serious offenses.
[2] A prior criminal record, when considered ancillary to an escalating pattern of offenses, may support a departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“One look at his criminal record, dating back to 1969 as a juvenile, is sufficient to convince one that this individual is incapable of living in a free society without violating the laws of that society. His record for offenses has escalated through the years, and in 1979 he was sentenced to five years for sale of a controlled substance.”
Trial judge's articulation of the primary basis for departure—escalating pattern of offenses
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Join FLexlaw to unlock all legal intelligenceJohn Smith was convicted by jury of unlawful possession of cocaine with intent to sell or deliver. He sold cocaine to an undercover police officer for…
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COBB, Chief Judge.
Appellant, John Smith, timely appeals from a sentence of fifteen years in prison for unlawful possession of cocaine with intent to sell or deliver, in violation of section 893.13(l)(a)l, Florida Statutes (1983). This sentence was a departure from the guidelines and constituted the maximum term provided by law. All the relevant facts are contained in the trial judge's order explaining his reasons for departure. The.order reads as follows:
The Defendant in this case is before the Court for sentencing. The sentencing guidelines score sheet prepared on the Defendant shows a total point score of 77, which in this case would provide a guidelines sentence of community control or 12-30 months incarceration.
The purpose of this order is to articulate the reasons for deviating from the guidelines..
The Defendant was convicted by a jury of the crime of unlawful possession with intent to sell or deliver cocaine. This Defendant made a sale of cocaine to an undercover police officer for the sum of $50.00. One look at his criminal record, dating back to 1969 as a juvenile, is sufficient to convince one that this individual is incapable of living in a free society without violating the laws of that society. His record for offenses has escalated through the years, and in 1979 he was sentenced to five years for sale of a controlled substance. This did not convince him that he could not deal in drugs and escape the wrath of society. A sentence within the guidelines range would be unconscionable and this Court, therefore, finds and determines that it is necessary to go outside the guidelines and impose a sentence accordingly.
As we read the order, the trial judge’s departure primarily was based on an escalating pattern of more serious offenses. See May v. State, 475 So. 2d 1004 (Fla. 5th DCA 1985). The PSI in the record supports that finding. We consider the reference in the order to the prior record as merely ancillary to the escalation finding, not as a separate and invalid reason for. departure under Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Even if we were to consider that the trial court had included an invalid reason for departure (the defendant’s prior scored record), we would still find, beyond a reasonable doubt, that without consideration of the invalid reason the trial judge would have departed in this case. See Albritton v. State, 476 So. 2d 158 (Fla.1985).
The second facet of Albritton, however, requires reversal. The defendant’s guideline score in this case placed him in the second cell. The departure sentence jumped to the ninth cell. We find the extent of this departure an abuse of discretion, and remand for resentencing within the fourth cell.
Accordingly, we affirm the trial court’s departure from the guidelines, but reverse the extent of that departure.
AFFIRMED in part; REVERSED in part; and REMANDED.
UPCHURCH and SHARP, JJ., concur.
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Citator
Cited By (18 total)
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Williams v. State, 484 So. 2d 71 (Fla. 1st DCA 1986)…stantially more than a mere reference to the defendant’s prior criminal record. Such a view is consistent with several recent post-Hendrix decisions of our sister courts. See Booker v. State, 482 So. 2d 414 (Fla. [*73] 2nd DCA 1985); Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985); Johnson v. State, 477 So. 2d 56 (Fla. 5th DCA 1985); and May v. State, 475 So. 2d 1004 (Fla. 5th DCA 1985). The defendant’s continuing and persistent pattern of criminal activity since age 16, together with the timing of such o…
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Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986)…a.1985). The final aspect of this case is the extent of the departure. The guidelines score was enhanced from any non-state prison sanction upwards nine cells to fifteen years, the maximum term provided by law. In a recent decision, Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985), which involved the same crime, initiated in the same county and resulted in a departure of the same magnitude, we held that a departure greater than the fourth cell was improper under Albritton. We likewise find that the court’s…
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Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986)…tery.1 The mere reliance on previous convictions already factored into the guidelines cannot justify a departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). While an escalating pattern of criminal conduct has been held sufficient, Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985), an ongoing history of violence has been deemed invalid. Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986). The presentence report refers to the need to incarcerate appellant for the protection of the community. Yet, in Middleton…
Previewing 3 of 18 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)
- MAY v. State, 475 So. 2d 1004 (Fla. 5th DCA 1985)