KENNETH ROBERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Roberson appealed his 15-year sentence for driving while intoxicated resulting in death, arguing the trial court improperly departed from the sentencing guidelines. The appellate court found the trial court's reasons for departure were insufficient under Hendrix v. State and reversed, requiring resentencing within guideline parameters.
The trial court's reasons for departing from the sentencing guidelines were insubstantial and insufficient under Hendrix v. State. The sentence must be quashed and the case remanded for resentencing in accordance with the guidelines.
[1] Sentencing guidelines prohibit the bare consideration of prior criminal arrests when determining a pattern of conduct leading to the instant offense.
[2] A defendant's entire criminal history, including prior arrests, may be considered for the purpose of determining his pattern of conduct leading to the instant offense.
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Join FLexlaw to unlock all legal intelligence“the trial court exceeded the recommended guideline sentence. The reasons for departure are wholly insufficient”
Establishes the core issue and the court's holding that the departure reasons failed to meet legal standards
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Join FLexlaw to unlock all legal intelligenceRoberson had an extensive criminal history including arrests for public drunkenness, drug-related offenses, and prior DWI convictions. On February 23,…
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DAUKSCH, Judge.
Appellant appeals his sentence because the trial court exceeded the recommended guideline sentence. The reasons for departure are wholly insufficient and require another reversal of a departure sentence. The reasons given are as follows:
1. Though the sentencing guidelines prohibit the bare consideration of prior criminal arrests, this Court is compelled to consider the Defendant’s entire criminal history, including all prior arrests, for the purpose of determining his pattern of conduct leading to the instant offense.
2. In this regard the Court notes from the Pre-Sentence Investigation report filed herein that:
a. On December 12,1968, the Defendant was arrested and subsequently convicted of public drunkenness.
b. Prom June, 1970, to September of 1972, the Defendant was arrested 7 times for criminal acts relating to drugs and controlled substances.
c. On February 5, 1973, the Defendant was convicted for Possession of Dangerous Drugs, Sale of Dangerous Drugs and Possession of Cannabis.
d. On November 23, 1982, the Defendant was convicted of Driving While Intoxicated.
e. On May 23, 1985, the Defendant pled nolo contendré [sic] to the offense of Driving While Intoxicated Resulting in Death.
3. That the above criminal history of this Defendant evinces to the Court that he is a perpetual substance abuser, incapable of being rehabilitated within the confines of the criminal justice system. His prior history of drunkenness possession and sale of drugs, and Driving While Intoxicated Resulting in Death establishes a pattern of conduct that renders him a continuing and serious threat to the community.
4. The Court is compelled to consider the risk to physical safety to the citizens of the State caused by the Defendant during the perpetration of this offense. The facts of the instant case are as follows:
a. On February 23, 1985, the Defendant was involved in a head-on collision where he crossed the center line and struck an oncoming vehicle.
b. The Defendant was driving a semi-tractor truck.
c. The accident occurred at approximately 1:50 in the afternoon and 2 hours later Defendant registered a .24% blood alcohol level.
d. The driver of the other car, a twenty-five year old mother of two young children, was crushed to death on impact.
e. The cause of the collision was the Defendant’s intoxicated condition and inability to maintain control of the semi-tractor. 5. It is obvious to this Court that the Defendant is unable to live a sober existence in a non-structured environment without violating the laws of society. Therefore, the protection of society demands that he be institutionalized by a term of imprisonment far in excess of that provided under the sentencing guidelines. Accordingly, this Court has imposed a sentence of fifteen (15) years on this Defendant.
These reasons are insubstantial because Hendrix v. State, 475 So. 2d 1218 (Fla.1985), so holds.
The sentence is quashed and this cause remanded for resentencing in accordance with the guidelines.
REVERSED and REMANDED.
UPCHURCH and COWART, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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LEE v. State, 486 So. 2d 709 (Fla. 5th DCA 1986)…) appears still to be a valid reason for departure, see Keen v. State, 481 So. 2d 1274 (Fla. 5th DCA 1986), it is questionable whether risk to physical safety of others (reason number one) remains a valid reason for departure. See Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986); see also Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986) (court states that risk to lives of others “may be appropriate” reason for departure but notes that the record did not clearly support trial judge’s findings in that c…
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Riggins v. State, 489 So. 2d 180 (Fla. 1st DCA 1986)…ave construed Hendrix to mean that when a reason given focuses primarily on the defendant’s criminal record which has been factored into the defendant’s guidelines sentence, that reason will be held an invalid basis for departure. Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986) (criminal history and defendant’s inability to live sober existence in nonstructured environment without violating the laws of society are insubstantial reasons for departure); Tillman v. State, 482 So. 2d 603 (Fla. 5th DCA 1986)…1 / 2
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Middleton v. State, 489 So. 2d 201 (Fla. 2d DCA 1986)…1985). Williams v. State, 484 So. 2d 71 (Fla. 1st DCA 1986). Young v. State, 488 So. 2d 114 (Fla. 1st DCA 1986). Fuller v. State, 488 So. 2d 594 (Fla. 2d DCA 1986). Contra: McCray v. State, 488 So. 2d 912 (Fla. 2d DCA 1986). Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986). Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986). Our conclusion is that this case is controlled by Hendrix. Here, as decided in Hendrix, a departure may not be based upon a defendant’s prior record which had already been f…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)