KENNETH JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Johnson appeals his departure sentence for burglary of a conveyance committed while on community control. The trial court imposed a three-cell upward departure from the guideline sentence based on Johnson's violation of probation and unscored juvenile record. The appellate court affirmed, holding that the unscored juvenile record constitutes a clear and convincing reason for departure independent of the probation violation.
The appellate court affirmed the departure sentence, holding that while probation violation alone permits only a one-bracket increase without written reasons, a greater departure requires additional clear and convincing reasons. Here, the unscored juvenile record provides such a clear and convincing reason for departure independent of the probation violation.
[1] A trial court may depart upward from a recommended sentence by one bracket for a violation of probation without providing a written reason, but any departure greater than…
[2] A defendant's juvenile record, even if excluded from initial guideline sentence computation, may serve as a clear and convincing reason for a departure 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 violation of probation is the sole reason for departing from the guideline sentence, the sentence may be increased one bracket without including a written reason for the departure. Any increase greater than one bracket requires that other clear and convincing reasons be given.”
Establishes the legal standard for sentencing departures based on probation violation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was on community control for two prior convictions when he was convicted of burglary of a conveyance. The trial judge revoked his community co…
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PER CURIAM.
This is an appeal of a departure sentence. Defendant was on community control for two convictions at the time he was adjudicated guilty of burglary of a conveyance in violation of section 810.02, Florida Statutes. The trial judge revoked his community control on both convictions and sentenced the defendant to five years in prison concurrent on the three cases, giving him two years and twenty days credit on the earlier convictions, but no credit on the burglary of a conveyance conviction.1 The imposed sentence was a three cell upward departure from the recommended sentence of community control or 12-30 months incarceration.
The trial judge listed as his reasons for departure:
The defendant has demonstrated total disregard for the law by committing new offenses while on probation. He has an extensive juvenile record (five felonies, one misdemeanor) that could not be scored.
This court has held in Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985), that if violation of probation is the sole reason for departing from the guideline sentence, the sentence may be increased one bracket without including a written reason for the departure. Any increase greater than one bracket requires that other clear and convincing reasons be given. See Ludmin v. State, 480 So. 2d 1389 (Fla. 1st DCA 1986); Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986).
The trial judge did list another clear and convincing reason for departure — the defendant’s juvenile record which was not scored in computing the recommended sentence. The Florida Supreme Court held in Weems v. State, 469 So. 2d 128 (Fla.1985), that Florida Rule of Criminal Procedure 3.701(d)(5)(c) excludes juvenile dispositions over three years old from initial computation but not from being considered as reasons for departing from the guidelines. Thus, the unscored juvenile record of the defendant is a clear and convincing reason for departure. The defendant’s violation of community control was not the sole reason for departure. The departure is supported by the clear and convincing reason of the uns-cored juvenile record, and is therefore affirmed.
AFFIRMED.
COBB, C.J., and ORFINGER, J., concur. COWART, J., concurs specially with opinion.
. This court has held that credit for presentence jail time need not be allocated to each concurrent sentence. Wallace v. State, 478 So. 2d 1092 (Fla. 5th DCA 1985). That opinion pointed out that there is currently a conflict between the district courts on this question and certified the following question to the Florida Supreme Court: “In crediting jail time served on concurrent sentences, must time served be applied in full to each concurrent sentence?”
COWART, Judge,
concurring specially:
I must concur because of the authority of Weems v. State, 469 So. 2d 128 (Fla.1985). The sentencing guidelines expressly exclude consideration of a juvenile record over three years old (Fla.R.Crim.P. 3.701(d)(5)(c)). The only two possible reasons for this exclusion are (1) the public policy consideration of shielding citizens from the consequences of wrongful acts committed while a juvenile and immature (see the dissent of Justice Boyd in Weems), and (2) such records were considered, by those approving the guidelines, to have too little relevancy, materiality, or probative value to even be weighed and considered as a sentencing factor to be scored. If it is good public policy that juvenile records should not be used to later penalize or disadvantage the citizen, why should such records be permitted to authorize a departure sentence? If remote juvenile records are not worthy of scoring for guideline sentencing purposes, how can those uns-cored records be considered so strongly relevant, material and probative to the sentencing disposition that they can be relied on to completely override the combined effect of all other, scored, sentencing factors which justify and direct the recommended guideline sentence? Remote juvenile records should either be scored as a relevant guideline factor1 or they should not justify a departure sentence.
. Perhaps juvenile records three years and older could be scored at 40%, 50%, 60%, or some other percentage of the full value given more current records.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lipscomb v. State, 573 So. 2d 429 (Fla. 5th DCA 1991)…een held sufficient to justify a departure sentence that likewise fail logical analysis; however, that fact does not reflect a defect in analysis but an illogical reason for departing. An example is an unscored juvenile record. See Johnson v. State, 483 So. 2d 855, 857 (Fla. 5th DCA 1986). . In his special concurring opinion in Harden v. State, 561 So. 2d 1365 (Fla. 4th DCA 1990), Judge Anstead noted that in Jones v. State, 530 So. 2d 53 (Fla.1988), the supreme court seemed to lock "temporal proximity” to a…
Authorities Cited
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Donnell Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986)
- Ludmin v. State, 480 So. 2d 1389 (Fla. 1st DCA 1986)
- Wallace v. State, 478 So. 2d 1092 (Fla. 5th DCA 1985)
- Kirkland v. State, 478 So. 2d 1092 (Fla. 1st DCA 1985)