ELVIS NATHANIEL CLARK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Elvis Clark appeals his departure sentence for carrying a concealed firearm, challenging both the trial court's stated reasons for departing from sentencing guidelines and whether he received due process. The court affirms that due process was provided but reverses the sentence because the trial court failed to provide clear and convincing reasons for departure as required by law.
The trial court did not deny due process as it announced its intention to depart based on Clark's prior record at sentencing. However, the sentence must be reversed because the trial court failed to provide clear and convincing reasons for departure; the stated reasons were either invalid under prior precedent or unsupported by the record.
[1] A trial court's stated reasons for departing from sentencing guidelines must be clear and convincing.
[2] A defendant's prior record alone may not constitute a clear and convincing reason for departure from sentencing guidelines.
Previewing 2 of 5 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“Reasons one, two and four cited by the trial court for departure are virtually identical to the reasons held invalid in Hendrix v. State 475 So.2d 1218 (Fla.1985).”
Establishes that three of the trial court's reasons for departure were legally deficient under prior precedent
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Join FLexlaw to unlock all legal intelligenceClark pleaded guilty to carrying a concealed firearm and scored 20 points under the sentencing guidelines, resulting in a recommended sentence of any …
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UPCHURCH, Judge.
Clark appeals from a departure sentence, raising two issues for our consideration. We find no merit to the first issue regarding an alleged denial of due process. However, we agree with Clark on the second issue that the trial court failed to state clear and convincing reasons for departure.
Clark pleaded guilty to the offense of carrying a concealed firearm. His score of twenty points resulted in a recommended sentence of any non-state prison sanction. Clark was instead sentenced to thirty months imprisonment. Clark’s first argument is that he was denied due process because the trial judge refused to state his reasons for departure at the sentencing hearing. The record does not support this claim. Rather, the transcript reflects that the trial judge did announce at the sentencing hearing that he would exercise his discretion to depart based upon Clark’s prior record.
Clark’s second argument is that the reasons for departure were not clear and convincing. In a separate order, the trial court set forth its reasons for departing as follows:
(1) Defendant has a complete and utter disregard for the law;
(2) Defendant has a history of criminal involvement;
(3) The facts of the case demonstrate to the trial court that the defendant is incapable of living in a free society without violating its laws;
(4) It is inconceivable that a non-state prison sanction would be sufficient punishment in this instance.
Reasons one, two and four cited by the trial court for departure are virtually identical to the reasons held invalid in Hendrix v. State 475 So. 2d 1218 (Fla.1985). Reason three cited by the trial court is simply not supported by the record. The evidence shows that Clark was arrested while leaving a bar. The police observed a suspicious bulge underneath his belt, stopped him and discovered the firearm hidden by his clothes. No aggravated assault had occurred. The record does not reflect, nor does the state allege, that there were any aggravating factors surrounding the incident. The presentence investigation report reveals that Clark had successfully completed probation in prior incidents. Since the facts of this case do not support the court’s finding that Clark was incapable of living in a free society without violating its laws, this reason is also invalid.
Sentence reversed and cause remanded for resentencing in accordance with the sentencing guidelines.
DAUKSCH and SHARP, JJ„ concur.
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Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987)…acate this sentence and remand for resentencing consistent with the guidelines. . This was a three-cell departure upward from the presumptive sentence. . Fla.R.Cr.P. 3.701. . See Scott v. State, 482 So. 2d 607 (Fla. 5th DCA 1986), Clark v. State, 481 So. 2d 994 (Fla. 5th DCA 1986), Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985), Gale v. State, 483 So. 2d 53 (Fla. 1st DCA), review denied, 492 So. 2d 1332 (Fla.1986). . §§ 948.03, 948.01(3), Fla.Stat. (1983). . § 948.01(8), Fla.Stat. (1983). . The co…
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Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986)…d third reasons for departure are also invalid. It has been repeatedly held that the insufficiency of a guideline sentence to punish the wrongdoer is an invalid reason for departure. See Hendrix v. State, 475 So. 2d 1218 (Fla. 1985); Clark v. State, 481 So. 2d 994 (Fla. 5th DCA 1986). Additionally, the possibility of gain time was a factor included in computing the sentencing guidelines. See Fla.R.Crim.P. 3.701(b)(5). It is impermissible to base a departure sentence upon a reason already factored into the gui…
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Safford v. State, 488 So. 2d 141 (Fla. 5th DCA 1986)…, (Fla. 1st DCA 1986) (deterrence of defendant is a valid reason to depart). THE FOURTH REASON: That the defendant’s crime calls for a more serious punishment than the guidelines would provide is not a valid reason for departure. In Clark v. State, 481 So. 2d 994 (Fla. 5th DCA 1986), this court held that the lower court’s belief that the guideline sentence would be insufficient punishment is not a proper reason for departure. See also Allen, 476 So. 2d at 310. While the first reason given for departure may…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)