WALTER LEON IRVING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Walter Irving appealed his sentence in a probation revocation proceeding, challenging the trial court's upward departure from the presumptive sentencing guidelines. The appellate court found that the trial court relied on both valid and invalid reasons for the departure, requiring reversal and remand for resentencing.
The trial court's departure sentence was improper and must be reversed and remanded for resentencing because the court relied on both valid and invalid reasons, and the record does not establish beyond a reasonable doubt that the invalid reasons did not affect the departure decision.
[1] A trial court may not depart from presumptive sentencing guidelines based on factors relating to the offense for which a defendant was convicted.
[2] A defendant's prior record may serve as a basis for departing from presumptive sentencing guidelines only to the extent that prior convictions were not already scored on…
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Join FLexlaw to unlock all legal intelligence“when a departure sentence is grounded on both valid and invalid reasons that the sentence should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence”
Establishes the legal standard for reversing a departure sentence based on mixed valid and invalid reasons
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Join FLexlaw to unlock all legal intelligenceIrving had his probation revoked and was sentenced to five years incarceration, which was two cells higher than the presumptive guidelines sentence (a…
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LEHAN, Judge.
Defendant appeals his sentence in this revocation of probation proceeding. He contends that the trial court improperly departed from the presumptive sentence under the sentencing guidelines by imposing a sentence of five years incarceration. The sentence was two cells higher than the presumptive guidelines sentence after raising the sentence one cell for revocation of probation, although the scoresheet appears to indicate erroneously that the sentence was only one cell higher than the presumptive guidelines sentence.
The trial court gave the following reasons for departure: First, “defendant’s significant prior record, which includes several convictions for theft and related crimes (see P.S.I.)”; second, “the factors surrounding the offense for which the defendant was placed on probation, to-wit: a residential burglary and theft therefrom of substantial property”; and third, “defendant’s violation of probation by engaging in several sales of drugs while on probation.”
The second of those reasons was improper as involving factors relating to the offense for which a conviction was obtained. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
The third of those reasons was proper only as a basis for a departure from the guidelines to the extent of one cell and was not a proper basis for the departure here. Fla.R.Crim.P. 3.701(d)(14). See also Wigfals v. State, 480 So. 2d 259 (Fla. 2d DCA 1986). It is true that defendant was charged with violating probation by engaging in several drug sales. However, the trial court considered that conduct as constituting one violation of probation. Also, this case involved the only time defendant had appeared before the trial court on charges of violating his probation. Therefore, this case is distinguishable from cases approving a departure by more than one cell for multiple probation violations. See Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985); Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985); Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985).
As to the first of those reasons, defendant’s prior record cannot be a proper basis for departure, to the extent that prior convictions had already been scored on the scoresheet. See State v. Williams, 477 So. 2d 570 (Fla.1985). It is true, as the state argues, that defendant’s prior record included several previous convictions which had not been scored because they were juvenile offenses more than three years old and therefore provided a proper reason for departure. See Weems v. State, 469 So. 2d 128 (Fla.1985). However, we cannot ascertain definitely from the record whether the trial court intended to depart only on the basis of those prior juvenile offenses. Our Supreme Court has stated:
[T]hat when a departure sentence is grounded on both valid and invalid reasons that the sentence should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence.
Albritton v. State, 476 So. 2d 158, 160 (Fla.1985). On the record before us, we are unable to determine beyond a reasonable doubt whether elimination of the impermissible reasons would have affected the departure sentence. Therefore, in accordance with Albritton, we reverse defendant’s sentence and remand for resentencing.
CAMPBELL, A.C.J., and SANDERLIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986)…the sentence imposed is in excess of the next higher cell, a departure must be supported by a clear and convincing reason other than a single violation of community control. See Carlisle v. State, 485 So. 2d 26 (Fla. 1st DCA 1986); Irving v. State, 484 So. 2d 78 (Fla. 2d DCA 1986). We find that the court in the instant case did not provide clear and convincing reasons to support its four cell departure. Although the court noted that the underlying reason for appellant’s violation was his “continued substan…
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Gussie Anderson and Earleen James v. SUN Tr. Bank/North, 679 So. 2d 307 (Fla. 5th DCA 1996)…Rule 5.042(e) requires that a copy of any written petition or motion which cannot be heard ex parte and a copy of the notice of hearing pertaining thereto be served a reasonable time before the time specified for the hearing. In Montgomery v. Cribb, 484 So. 2d 78 (Fla. 2d DCA 1986), the only ease which interprets this rule, the court held that two days notice for a hearing on a motion to strike a claim against an estate based upon a summary judgment was inadequate. We agree with appellants that four days no…
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Reid v. State, 488 So. 2d 913 (Fla. 2d DCA 1986)…g into victim’s home, that portion of the reason dependent upon the unlawful entry into the victim’s home was an element of one of the offenses for which defendant was convicted and was therefore an invalid reason for departure. See Irving v. State, 484 So. 2d 78 (Fla. 2d DCA 1986). The threat and the injuries were contained in reasons 1 and 2 which are referred to above. The mere fact that the victim was alone is not a valid reason for departure. Cf. Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986) (that…
Previewing 3 of 6 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)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- Jock Everett Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985)
- Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985)
- State v. Williams, 477 So. 2d 570 (Fla. 1985)
- Wigfals v. State, 480 So. 2d 259 (Fla. 2d DCA 1986)