STATE OF FLORIDA, APPELLANT,
v.
RICHARD TAYLOR, APPELLEE
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Florida appeals a trial judge's downward departure sentence for sexual battery of a 13-year-old daughter. The appellate court vacates the sentence, holding that the stated reasons for departure—absence of prior record, cooperation, stable environment, community ties, and employment concerns—are not valid under sentencing guidelines.
The court held that none of the five reasons provided by the trial judge constituted valid, clear and convincing reasons for departure from the guidelines. Lack of prior record, cooperation with courts, stable environment, community ties, and limited education are either already factored into guidelines calculations or are not cognizable bases for departure.
[1] A defendant's lack of prior offenses is not a valid reason for a downward departure sentence, as this factor is already considered in guideline calculations.
[2] A defendant's cooperation with court orders and appearances does not constitute a clear and convincing reason for a downward departure sentence.
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Join FLexlaw to unlock all legal intelligence“The first ground is not a proper basis for departure because a defendant's prior record (or lack of one) is already factored into the guideline calculation.”
Establishes that prior criminal record cannot be used as a reason for departure since it is inherent in guideline calculations
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Join FLexlaw to unlock all legal intelligenceDefendant pleaded nolo contendere to sexual battery of his 13-year-old daughter. The sentencing guidelines recommended 30 months to 3½ years imprisonm…
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ORFINGER, Judge.
The State appeals a downward departure sentence following defendant’s plea of nolo contendere to a charge of sexual battery of his 13 year old daughter. We agree that no clear and convincing reasons were given for departure, and vacate the sentence.
We will not detail the sordid events which ultimately led to this prosecution. What we have said above about the nature of the crime sufficiently describes it for the purposes of this opinion. The recommended guideline sentence was 30 months to 3½ years’ imprisonment, but the trial judge departed and sentenced defendant to 51 weeks in the county jail to be followed by 5 years’ probation. The written reasons for departure given were:
1. The defendant had no prior offenses.
2. The defendant cooperated with all court orders, appearances and therapy.
3. The defendant had a stable environment.
4. To follow the guidelines would sever defendant’s ties with the community.
5.To follow the guidelines would make it difficult for the defendant to regain employment with his limited education.
The first ground is not a proper basis for departure because a defendant’s prior record (or lack of one) is already factored into the guideline calculation. Hendrix v. State, 475 So. 2d 1218 (Fla. 1985). The second ground, cooperation and compliance with court orders, does not justify a reward because a defendant is required to comply and his failure to appear when required could be a crime. Cooperation is not a basis for departure. State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985), rehearing granted, (Fla. 5th DCA Jan. 30, 1986). Thus, this reason too, like the first reason refers to his “good record” which is not a reason for departure. See also State v. Bentley, 475 So. 2d 255 (Fla. 5th DCA 1985).
In addition to the failure of the third reason to be a clear and convincing reason for departure, it is obviously not supported by the record. Any person who sexually abuses his 13 year old daughter obviously lacks stability in his environment. The fourth reason cited for departure is also not clear and convincing, as it has already been factored into the guidelines calculations when imprisonment is recommended by the guidelines. A natural consequence of any sentence of imprisonment is the severance of the defendant’s ties with his community. Similarly, the fifth reason does not justify a departure. If education (or lack of it) should have little bearing on a sentence for a robber, Bentley, 475 So. 2d at 255, it hardly seems likely that it should be given more consideration in sentencing one convicted for sexual battery. Inasmuch as the last reason given seems to express the view that the defendant would be better off with the lower sentence, that view cannot be a valid reason for departure where a guideline sentence of incarceration is required. See State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985).
The sentence is vacated and the cause is remanded for resentencing in accordance with the guidelines absent clear and convincing reasons for departure.
SENTENCE VACATED and REMANDED.
COWART, J. and SCHWARTZ, A.R., Associate Judge, concur.
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State v. Sachs, 526 So. 2d 48 (Fla. 1988)…BARKETT, Justice. We have for review State v. Sachs, 507 So. 2d 708 (Fla. 2d DCA 1987), based on certified conflict with State v. Sanders, 512 So. 2d 204 (Fla. 4th DCA 1986), aff'd in pertinent part, 510 So. 2d 296 (Fla.1987), State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986), and State v. Holcomb, 481 So. 2d 1263 (Fla. 3d DCA 1986). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We quash the decision of the Second District and remand for further proceedings. While operating a motor vehicle, re…
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State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991)…. The sentencing guidelines do not provide special treatment for the trained, educated, or licensed. To achieve equality in sentencing, trial judges must be blind as to the color of a defendant’s collar. 553 So. 2d at 780. See also State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986) (fact that guidelines recommended sentence would make it difficult for the defendant to regain employment was not a valid reason for a downward departure). The third reason for departure is the judge’s belief that the defendant…
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Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988)…2d 268 (Fla. 1st DCA 1985). The first reason concerns Byrd’s prior record. A defendant’s record or lack of one is not a valid reason for departure because that factor is already taken into consideration in the guideline calculation. State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986). The second reason is that the state troopers who investigated this incident would not recommend prison. This is not a valid reason for departure. See Montgomery v. State, 489 So. 2d 1225 (Fla. 5th DCA 1986) (recommendation of a…
Previewing 3 of 12 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)
- State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985)
- State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985)
- State v. Bentley, 475 So. 2d 255 (Fla. 5th DCA 1985)