STATE OF FLORIDA, APPELLANT,
v.
ERIC JAMES MIHOCIK, APPELLEE
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Florida appeals a downward departure sentence imposed by the trial court for a defendant who was eighteen years old. The appellate court holds that while youth can justify downward departure under sentencing guidelines, the trial court impermissibly relied on the defendant's prior criminal record and probation status as reasons for departure, necessitating resentencing with a corrected guideline scoresheet.
The trial court's downward departure was improper because it relied on impermissible factors (prior criminal record and probation status) that must be factored into the guideline scoresheet itself rather than used as reasons for departure. While a defendant's youth may constitute a clear and convincing reason for downward departure, it cannot be combined with impermissible reasons.
[1] A defendant's prior criminal activity, which is a factor to be scored on a guideline scoresheet, cannot be used as a reason for downward departure from a recommended guid…
[2] Probation status at the time of the commission of an offense should be factored into the guideline scoresheet as a legal constraint or, if revoked and sentencing occurs a…
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Join FLexlaw to unlock all legal intelligence“The defendants prior criminal record is a factor to be scored in a guideline scoresheet and cannot be used as a reason for departure.”
Establishes that prior criminal record must be incorporated into the scoresheet calculation and cannot justify downward departure as an independent reason.
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Join FLexlaw to unlock all legal intelligenceEric James Mihocik was sentenced by the trial court with a downward departure from the recommended guideline sentence. The trial court cited two reaso…
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COWART, Judge.
This is another guideline sentencing case. The trial court imposed a sentence that departed downward from the recommended guideline sentence for the reason that the defendant was only eighteen years old and his prior criminal activity had resulted in probation from the county court. The defendants prior criminal record is a factor to be scored in a guideline scoresheet and cannot be used as a reason for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Similarly, if the defendant was on probation at the time of the commission of an offense for which he is being sentenced, the probation should be factored in the scoresheet as a legal constraint at time of offense or if the probation is revoked and sentencing occurred after July 1, 1984, that should be factored under Florida Rule of Criminal Procedure 3.701(d)(14). While the youth of a defendant in a given case may constitute a clear and convincing reason for downward departure, see State v. Bentley, 475 So. 2d 255 (Fla. 5th DCA 1985); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985), in this case it is combined with an impermissible reason so the sentence must be vacated for the reasons set forth in Albritton v. State, 476 So. 2d 158 (Fla.1985). See DeVane v. State, 479 So. 2d 137 (Fla. 5th DCA 1985); Cord v. State, 478 So. 2d 1191 (Fla. 5th DCA 1985); Hall v. State, 78 So. 2d 519 (Fla. 5th DCA 1985); Shelton v. State, 478 So. 2d 433 (Fla. 5th DCA 1985); Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985); Bentley v. State, 477 So. 2d 58 (Fla. 5th DCA 1985); Holt v. State, 477 So. 2d 59 (Fla. 5th DCA 1985).
The sentence is vacated and the cause remanded for resentencing after preparation of a correct guideline scoresheet.
SENTENCE VACATED; CAUSE REMANDED.
DAUKSCH and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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State v. Villalovo, 481 So. 2d 1303 (Fla. 3d DCA 1986)…of contraband involved, Irwin v. State, 479 So. 2d 153 (Fla.2d DCA 1985), and the fact that the defendant was “mildly retarded” and suffered from “central nervous disfunction,”1 Steiner v. State, 469 So. 2d 179 (Fla.3d DCA 1985); State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986), are appropriate bases for departure.2 Since we find no abuse of discretion in the extent of the deviation, Albrit [*1304] ton v. State, 476 So. 2d 158 (Fla.1985), the sentence under review is Affirmed. . These conclusions,…
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State v. Baker, 498 So. 2d 1031 (Fla. 1st DCA 1986)…ant’s mild retardation) State v. Villalovo, 481 So. 2d 1303 (Fla. 3d DCA 1986); (the small amount of contraband involved) Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985), rev. denied 488 So. 2d 830 (Fla.1986); (defendant’s youth) State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986), we agree with the state’s position that the circumstance that defendant completed his escape from a work release center without perpetrating violence or injury does not justify a lighter sentence of incarceration by two years, a…
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State v. D'Alexander, 496 So. 2d 1007 (Fla. 2d DCA 1986)…nces exist. To be sufficiently mitigating, the circumstance must ameliorate the level of defendant’s guilt. Eutzy v. State, 458 So. 2d 755 (Fla.1984). For example, a defendant’s youth has been found to be a mitigating circumstance. State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986). A drug dependency is not a sufficiently mitigating circumstance. It does not ameliorate the level of a defendant’s guilt. The need for medical treatment does not justify a departure from the sentencing guidelines. Young v. State…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- 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)
- Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985)
- State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985)
- State v. Bentley, 475 So. 2d 255 (Fla. 5th DCA 1985)
- Shelton v. State, 478 So. 2d 433 (Fla. 5th DCA 1985)
- Bentley v. State, 477 So. 2d 58 (Fla. 5th DCA 1985)
- DeVANE v. State, 479 So. 2d 137 (Fla. 5th DCA 1985)
- Tanjelia Marie Holt v. State, 477 So. 2d 59 (Fla. 5th DCA 1985)