SCOTT ALAN DECKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Decker appealed his departure sentence for attempted armed robbery, armed robbery, and burglary, challenging the trial court's reasons for imposing a consecutive sentence exceeding the guidelines. The appellate court found one of the two reasons for departure invalid and reversed the sentence for re-sentencing.
The trial court's first reason for departure was invalid because it was vague and unclear, relying on appellant's background without sufficient explanation and potentially improperly considering prior record already factored into the guidelines score. The second reason was valid as it considered the seriousness of the criminal episode and temporal-geographical circumstances of the offenses. However, the court could not determine beyond a reasonable doubt that the sentence would have been the same without the invalid reason, requiring reversal and re-sentencing.
[1] A reason for departure from sentencing guidelines is invalid if it is not clear and convincing.
[2] A trial court's reason for departure from sentencing guidelines is invalid if it relies on factors already considered in calculating the recommended sentence.
Previewing 2 of 4 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“If the trial court was considering appellant's prior record, which had already been factored into the recommended score, the reason is invalid based on the supreme court's decision in Hendrix v. State”
Establishes that prior record cannot serve as a basis for sentencing departure because it is already incorporated in the guidelines calculation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDecker pled guilty to attempted armed robbery, armed robbery, and burglary of a structure. The two robberies occurred within approximately one hour an…
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WIGGINTON, Judge.
Appellant pled guilty to attempted armed robbery, armed robbery, and burglary of a structure. The robberies took place within approximately an hour and fifteen minutes of one another. The burglary of a structure was committed two months prior to those offenses. Although the recommended guidelines sentence was four and one-half to five and one-half years’ incarceration, the trial court imposed a sentence of five and one-half years with a three-year mandatory minimum sentence for the armed robbery; a sentence of three and one-half years with a three-year mandatory minimum for the attempted armed robbery; and a sentence of five years’ probation for the burglary, the sentences to run consecutively. As its reasons for departure, the trial court set forth the following:
From the Defendant’s background and his inability to conform to any kind of regulation while in the service or as a civilian, the 5½ years maximum would be insufficient. Also, he, in this one episode, executed an armed robbery, anoth er attempted armed robbery and buglar-ized another establishment. The Court finds the maximum guidelines sentence to be inappropriate for such a criminal episode.
Other than a vague reference to appellant’s background, it is unclear in the first reason for departure precisely why the recommended sentence of five and one-half years was insufficient. If the trial court was considering appellant's prior record, which had already been factored into the recommended score, the reason is invalid based on the supreme court’s decision in Hendrix v. State, 475 So. 2d 1218 (Fla.1985). In any event, we are left to speculate in reviewing the judge’s first reason for departure. We hold it is therefore invalid as not being clear and convincing.
It is also somewhat unclear as to precisely what the trial court was considering in its second reason for departure. However, the reason given suggests the court either found the recommended sentence. inappropriate due to the seriousness of the criminal episode, or due to the “temporal and geographical circumstances” of the offenses for which appellant was convicted. Given either explanation, though, the reason is valid. Smith v. State, 479 So. 2d 804 (Fla. 1st DCA 1985); Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984); Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984).
Nevertheless, our review of the record and the arguments made have not persuaded us beyond a reasonable doubt that the trial court would have sentenced appellant in the same manner, without the benefit of the invalid reason relied upon. Accordingly, the departure sentence is reversed and the cause is remanded for re-sentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985).
ERVIN, J., and McCORD, GUYTE P., Jr. (Ret.), Associate Judge, concur.
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Citator
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Snelling v. State, 500 So. 2d 328 (Fla. 1st DCA 1986)…s pronounced. We find the first reason for departure clear and convincing. On several occasions, this court has held that the timing of the crimes committed is a valid basis for departure from the recommended sentencing guidelines. Decker v. State, 482 So. 2d 511 (Fla. 1st DCA 1986); Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985); Smith v. [*329] State, 479 So. 2d 804 (Fla. 1st DCA 1985); Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984); Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984). In the inst…
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Scott v. State, 488 So. 2d 146 (Fla. 3d DCA 1986)…ws a total lack of respect for the criminal justice system. 10. The defendant has shown no remorse for crimes he committed. The state concedes the invalidity of reasons four, Hendrix v. State, 475 So. 2d 1218 (Fla.1985); five, see Decker v. State, 482 So. 2d 511 (Fla. 1st DCA 1986); and ten, State v. Mischler, 488 So. 2d 523 (Fla.1986). The state, though conceding the invalidity of “lack of respect” as a reason for departure, contends that reason three is valid because it is based upon Scott’s perjury at t…
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Rousseau v. State, 496 So. 2d 830 (Fla. 1st DCA 1986)…eau’s extensive prior record of misdemeanor offenses; and 5) the expressed desire that he understand that his crimes would not be tolerated in Clay County. Temporal circumstances of the crimes is an acceptable reason for departure. Decker v. State, 482 So. 2d 511 (Fla. 1st DCA 1986); Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985). Psychological trauma to the victims has been similarly approved. Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986); Harris v. State, 482 So. 2d 548 (Fla. 4th DCA 1986); Caste…
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)
- Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984)
- Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984)
- Alphonso Prosperty Smith v. State, 479 So. 2d 804 (Fla. 1st DCA 1985)