JOSEPH ROLAND WHITE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A departure sentence must be vacated if based in part on an impermissible reason, such as the defendant's prior criminal record.
The defendant was convicted of burglary of a structure and received a departure sentence. The trial court cited the defendant's extensive criminal rec…
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ORFINGER, Judge.
The defendant appeals his departure sentence following his conviction for burglary of a structure. We must vacate the sentence.
Two reasons were given for departure. One was defendant’s extensive criminal record. Because the prior criminal record is scored in computing the guideline sentence, it may not be used as a basis for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). The other reason was the fact that defendant committed the crime for which he was being sentenced only two days after his release from prison on an earlier conviction. This court has held that the timing of an offense may constitute a clear and convincing reason for departure. Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985). Other courts have reached the same conclusion. Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984).
Because the State has not met its burden of showing beyond a reasonable doubt that the departure sentence would have been imposed absent the impermissible reason, we vacate the sentence and remand for resentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985).
Sentence VACATED and REMANDED for resentencing.
DAUKSCH and COWART, JJ., concur.
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Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986)…rejudice to the state to tax them in accordance with the procedure outlined [*175] in Jenkins. Id. at 950. See also Quince v. State, 475 So. 2d 916 (Fla. 4th DCA 1985). REVERSED and REMANDED. ORFINGER and SHARP, JJ., concur. . See White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984); Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984).…
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Montgomery v. State, 489 So. 2d 1225 (Fla. 5th DCA 1986)…r 1 is included the fact that the defendant committed the later offenses [*1227] while she was awaiting sentencing and close to the time of her release. While the timing of an offense has been held to be a valid reason for departure, White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986); Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985), it is not at all clear that reason number 1 is based on this premise. Even if it was, the State has not carried its burden of demonstrating beyond a reasonable doubt that the…
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Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990)…mmitted the new substantive offense eleven months later, in May of 1988. The commission of new offenses eleven months after being placed on probation is not sufficient to justify imposition of a departure sentence. See Jones. Compare White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986). As for defendant’s pattern of criminal activity, in Jones, the supreme court ruled that in order to constitute a clear and convincing reason for departure, the sentencing court must recite the specific pattern of conduct evidenc…
Previewing 3 of 10 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)
- Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984)
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985)