DWIGHT MCCOY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A departure sentence grounded on both valid and invalid reasons must be reversed unless the state proves beyond a reasonable doubt that the invalid reasons did not affect the sentence.
Appellant was charged with drug offenses and pled nolo contendere. The trial court departed from the recommended sentencing guidelines, imposing a sen…
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CAMPBELL, Acting Chief Judge.
Appellant, Dwight McCoy, was charged by information with possession and delivery of heroin in violation of section 893.-13(l)(b) and (l)(a)(l), Florida Statutes (1983) and with delivery of cocaine in violation of section 893.13(l)(a)(l), Florida Statutes (1983). Appellant pled nolo contendere to the charges on November 5, 1984.
A sentencing hearing was held on December 7, 1984. The trial court departed from the recommended guideline sentence of “Community Control or 12-30 mos. incarceration” and sentenced appellant to thirty-five years imprisonment.
The issue before this court is whether the trial court had clear and convincing reasons to exceed the sentencing guidelines.
The trial court considered appellant’s extensive criminal history a valid reason for departure. Such consideration was improper since appellant’s prior convictions were taken into consideration in computing the recommended sentence. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). A review of the record, however, indicates that the court properly considered appellant’s flagrant disregard of the law and his apparent failure to respond to past rehabilitative efforts. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985).
When a departure sentence is grounded on both valid and invalid reasons, the sentence should be reversed unless the state shows beyond a reasonable doubt that the absence of invalid reasons would not have affected the departure sentence. Albritton v. State, 476 So. 2d 158 (Fla.1985). Focusing on Albritton, we cannot determine that the absence of the invalid reason would not have affected the departure sentence. Accordingly, we reverse and remand for resentencing.
SCHOONOVER and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mitchell v. State, 507 So. 2d 686 (Fla. 1st DCA 1987)…om committing similar acts. The first reason cited by the trial judge has been upheld in special circumstances where supported by clear and convincing evidence in the record. E.g., Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1986); McCoy v. State, 482 So. 2d 566 (Fla. 2d DCA 1986). Here, however, there is no evidence other than appellant’s prior record, which was factored into the recommended sentence, and several old unscored [*688] juvenile convictions (relied on in reason 3), to support the conclusion th…
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Riggins v. State, 489 So. 2d 180 (Fla. 1st DCA 1986)…82 So. 2d 565 (Fla. 2d DCA 1986) (branding defendant an “irretrievable criminal” focused primarily on past offenses that had been factored into the scoresheet and therefore this reason could not be used as a basis for departure); and McCoy v. State, 482 So. 2d 566 (Fla. 2d DCA 1986) (trial court’s consideration of the defendant’s extensive criminal history was an invalid reason for departure since defendant’s prior convictions were taken into consideration in computing the recommended sentence). However, the…
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Cassell v. State, 489 So. 2d 752 (Fla. 2d DCA 1986)…nes sentence. Several of the reasons listed are not clear and convincing reasons. However, reasons which relate to appellant’s resistance to rehabilitation may justify a departure. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985); McCoy v. State, 482 So. 2d 566 (Fla. 2d DCA 1986). In the event an appellate court cannot determine beyond a reasonable doubt that the trial court would have departed regardless of the invalid reasons, the case must be remanded for resentencing. Albritton v. State, 476 So. 2d 15…
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)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)