LAWRENCE MANNING SPIVEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal affirmed a probation revocation order but reversed and remanded for resentencing because the trial court imposed sentences departing from the sentencing guidelines based partly on invalid reasons unsupported by the record.
The trial court's departure from the guidelines was improper because two of the three stated reasons—lying at the hearing and lack of remorse—were invalid and unsupported by the record. Although the rapid reoffending within one month of probation constituted a valid reason for departure, the state failed to prove beyond a reasonable doubt that the two invalid reasons did not affect the trial court's sentencing decision.
[1] A trial court's departure from sentencing guidelines requires clear and convincing reasons supported by the record.
[2] A defendant's violation of probation by committing new offenses shortly after placement is a clear and convincing reason to depart from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“the trial court departed from the sentencing guidelines established by Fla.R. Crim.P. 3.701 when it imposed sentences totaling fifteen years imprisonment inasmuch as the guidelines scoresheet prepared in the cause called for a sentence of 12-30 months imprisonment”
Establishes that the trial court's sentences exceeded the guideline range, requiring justification for departure
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Join FLexlaw to unlock all legal intelligenceLawrence Spivey was placed on probation and violated it by committing two new offenses within one month. At the probation revocation hearing, the tria…
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PER CURIAM.
This is an appeal from a probation revocation order and a series of sentences totaling fifteen years imprisonment. We find no merit in any of the points raised on appeal with reference to the probation revocation order and summarily affirm said order without further discussion. However, we reverse the sentences imposed herein and remand the cause to the trial court with directions to resentence the defendant. We reach the latter conclusion based on the following, briefly stated legal analysis.
First, the trial court departed from the sentencing guidelines established by Fla.R. Crim.P. 3.701 when it imposed sentences totaling fifteen years imprisonment inasmuch as the guidelines scoresheet prepared in the cause called for a sentence of 12-30 months imprisonment.
Second, the trial court gave, in effect, three reasons for departing from the sentencing guidelines, only one of which constitutes a clear and convincing reason for departing from said guidelines — namely, that the defendant violated his probation by committing two new offenses within one month of being placed on probation and has thereby shown that he cannot live by the rules of society. See, e.g., Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984); Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984); see generally Mischler v. State, 458 So. 2d 37, 41 nn. 7, 14 (Fla. 4th DCA 1984).
Third, the state concedes that the trial judge gave two other invalid reasons which are unsupported by the record for departing from the sentencing guidelines, namely, that the defendant lied while testifying at the probation revocation hearing and has shown no remorse for his crimes. Trainor v. State, 468 So. 2d 484, 485-86 (Fla. 2d DCA 1985); Sarvis v. State, 465 So. 2d 573, 576 (Fla. 1st DCA 1985).
Fourth, the state has failed to establish beyond a reasonable doubt that the absence of the invalid reasons, stated above, would not have affected the departure sentence. Stated differently, the state has failed to establish beyond a reasonable doubt that the two invalid reasons herein did not affect the trial court’s decision to (a) depart from the guidelines and (b) impose sentences totaling fifteen years imprisonment, as opposed to above-the-guidelines sentences totaling less than fifteen years imprisonment. See Albritton v. State, 476 So. 2d 158, 160 (Fla.1985).
The probation revocation order is affirmed. The sentences imposed are reversed and the cause is remanded to the trial court with directions to resentence the defendant.
Affirmed in part; reversed in part and remanded.
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REE v. State, 512 So. 2d 1085 (Fla. 4th DCA 1987)…See Isgette v. State, 494 So. 2d 534 (Fla. 4th DCA 1986); Rodriguez v. State, 464 So. 2d 638 (Fla. 3d DCA 1985). The second reason (commission of crimes within eight months of being placed on two years’ probation) is also valid. See Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986). The state concedes, however, that the third reason was invalid; and although the fourth reason (trend toward criminality of increasing severity), could have been valid, Ballard v. State, 501 So. 2d 1285 (Fla. 4th DCA), rev. denie…
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Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)…ons for departing from the guidelines mandates reversal. For these reasons, we reverse and remand for further proceedings consistent with this opinion. DANIEL S. PEARSON, Judge, concurring. I concur in the result only. . See abo Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986), where this court held that a defendant’s violation of probation by committing two new offenses within one month after being placed on probation constitutes a clear and con- ■ vincing reason for departure from the guidelines.…
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Pedro F. Bernal, M.D. v. Dep't of Prof'l Reg., 517 So. 2d 113 (Fla. 3d DCA 1987)…ive.2 City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla.1985); Dixon v. State, 513 So. 2d 1378 (Fla. 3d DCA 1987); Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985); Evrard v. State, 502 So. 2d 3 (Fla. 4th DCA 1986); Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986). The other ground asserted, which refers to the alleged seriousness of the offense, is likewise insufficient. It seems clear that this ground does not “cite to the record in justifying the action”; and, more importantly, simply r…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Glynn Addison, Jr. v. State, 452 So. 2d 955 (Fla. 2d DCA 1984)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985)
- Smith v. State, 465 So. 2d 573 (Fla. 4th DCA 1985)