THE STATE OF FLORIDA, APPELLANT,
v.
TOMMY L. HOLCOMB, APPELLEE
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Florida appealed a probation sentence for armed robbery that departed from sentencing guidelines. The court reversed because the trial court relied partly on an invalid reason for departure—the defendant's lack of prior criminal record, which is already factored into the guidelines—and the defendant failed to show this invalid reason did not affect the sentencing decision.
The departure from sentencing guidelines is invalid and reversed. The defendant's lack of prior criminal record is not a valid reason for departure because it is already factored into the presumptive guideline sentence. The defendant failed to establish beyond a reasonable doubt that this invalid reason did not affect the decision to depart from guidelines and impose probation.
[1] A departure from sentencing guidelines requires clear and convincing reasons.
[2] A defendant's lack of a prior criminal record is not a valid reason for departing from sentencing guidelines, as it is already factored into the presumptive sentence.
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Join FLexlaw to unlock all legal intelligence“the guidelines scoresheet prepared in the cause called for a prison sentence of 3½-4½ years”
Establishes that the trial court's probation sentence was a substantial departure from the guideline range
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Join FLexlaw to unlock all legal intelligenceTommy L. Holcomb was convicted of armed robbery. The sentencing guidelines scoresheet called for a prison sentence of 3½-4½ years. The trial court ins…
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PER CURIAM.
The order placing the defendant Tommy L. Holcomb on probation, with a special condition of 364 days confinement in jail, for the crime of armed robbery is reversed and the cause is remanded to the trial court with directions to resentence the said defendant. We reach this conclusion based on the following, briefly stated legal analysis.
First, the said order constitutes a departure from the sentencing guidelines established by Fla.R.Crim.P. 3.701, because the guidelines scoresheet prepared in the cause called for a prison sentence of 3½-4½ years.
Second, the trial court relied on three reasons for departing from the guidelines in the defendant’s favor, only two of which constitute clear and convincing reasons for doing so: (a) the defendant acted under duress from a co-defendant in the commission of the instant offense, and (b) the defendant Holcomb did not carry the gun used to commit the instant offense. See State v. Carson, 320 N.W. 2d 432, 438 (Minn.1982).
Third, the trial court’s last reason for departing from the sentencing guidelines was entirely invalid — to wit: the defendant’s lack of a prior criminal record — inasmuch as this reason is already factored into the sentencing guidelines presumptive sentence. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
Fourth, the defendant Holcomb has failed to establish beyond a reasonable doubt that the invalid reason, stated above, did not affect the decision to (a) depart from the sentencing guidelines and (b) place the defendant on probation, rather than impose a below-the-guidelines jail or prison sentence, and accordingly the probation order under review must be reversed. See Albritton v. State, 476 So. 2d 158 (Fla.1985).
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities 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)