ELTON ANGUS SCOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Scott appeals his guidelines sentences for two convictions of lewd assault upon a child, challenging the trial judge's departure above the recommended 15-year sentence to impose two consecutive 15-year sentences. The court reverses and remands for resentencing because the departure order was based partly on a factual error and because the stated reasons for departure (protection of society) do not justify exceeding the already-substantial guidelines sentence.
The court reverses and remands because the departure order contains a material factual error regarding the number of prior convictions, and the stated reasons for departure—protecting society and ensuring punishment—do not justify exceeding the already-substantial guidelines sentence for an elderly, infirm offender.
[1] A departure from sentencing guidelines is improper if based on a factual error that may have substantially affected the sentencing decision.
[2] A trial court's belief that a defendant cannot be rehabilitated and poses a threat to society is insufficient grounds for departing from sentencing guidelines when the re…
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Join FLexlaw to unlock all legal intelligence“We cannot determine whether that mistake in fact substantially affected the trial judge's decision to depart. Thus, in light of the ruling in Albritton v. State, 476 So.2d 158 (Fla.1985), we must reverse and remand for resentencing.”
Establishes that factual errors in the departure order mandate reversal and resentencing under Albritton.
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Join FLexlaw to unlock all legal intelligenceScott had two prior convictions for lewd and lascivious assaults upon children and was on parole when he committed the two present offenses involving …
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WIGGINTON, Judge.
Appellant appeals his guidelines sentences on two judgments of conviction of lewd assault upon a child under the age of fourteen years. We reverse and remand for resentencing.
Appellant’s sentencing guidelines score-sheet, prepared pursuant to Florida Rule of Criminal Procedure 3.701, showed that, in addition to the two present offenses, appellant had two prior convictions of lewd and lascivious assaults upon children for which he was on parole at the time of commission of the present offenses. The scoresheet resulted in a recommended guidelines sentence of fifteen years for the two present offenses. However, in a departure from the guidelines, the trial judge imposed two consecutive 15-year sentences, to be served consecutively to the anticipated sentence to be imposed in Duval County as a result of appellant’s revocation of parole as to the two prior offenses.
In his departure order, the trial judge related that appellant had been convicted of five separate crimes involving child molestation over a period of ten years when, in fact, appellant had been convicted of only four such crimes. The trial judge then set forth the following grounds for departure:
1) Rehabilitation is not a goal of this Court in sentencing in that the defendant by his behavior demonstrates his intent to continue to victimize children.
2) The defendant has been afforded all benefits of the criminal justice system and he has not be [sic] rehabilitated. Now, the goals should be the prolonged protection of society and punishment of the individual for his criminal acts.
Perhaps the above reasons could be classified as clear and convincing grounds for departure, as were similar reasons in Moore v. State, 483 So. 2d 37 (Fla. 1st DCA 1986); Shelton v. State, 478 So. 2d 433 (Fla. 5th DCA 1985); Johnson v. State, 477 So. 2d 56 (Fla. 5th DCA 1985) and Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985). However, for two reasons, we do not find that the trial judge’s grounds for departure, as articulated, were appropriate in this case. First, the trial judge’s departure order is partially based upon a mistake in fact that appellant has five convictions when he actually has only four. We cannot determine whether that mistake in fact substantially affected the trial judge’s decision to depart. Thus, in light of the ruling in Albritton v. State, 476 So. 2d 158 (Fla.1985), we must reverse and remand for resentencing.
Secondly, the trial judge’s main motive for departure appears to be his belief that appellant should be incarcerated for a long period of time for the protection of society since he has demonstrated that he cannot be rehabilitated and will continue to commit proscribed acts. However, the recommended guidelines sentence in this case already provides for a prolonged period of incarceration for this approximately seventy year old appellant who is in poor health. In Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985), this Court rejected a similar reason for departure, stating:
The final reason for departure, that Sabb is a threat to society and there is no reasonable expectation that similar behavior would cease upon his release, is likewise insufficient. The guidelines call for a prison sentence of five and one-half to seven years [the trial judge imposed a 25 year sentence], and thus the trial court’s concern about protecting society from any continuing threat could have been assuaged without deviation from the recommended sentence.
Similarly, in the instant case, the trial court’s concern over the protection of society from a continuing threat by appellant could be adequately assuaged without deviation from the recommended sentence.
REVERSED and REMANDED for re-sentencing.
ERVIN, J., and McCORD, GUYTE P. Jr. (Ret.), Associate Judge, 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)…dge to base departure on his perception that the recommended sentence under the guidelines is not commensurate with the seriousness of the offense. Likewise, the “protection of the community” is an invalid reason for departure. E.g., Scott v. State, 484 So. 2d 100 (Fla. 1st DCA 1986); Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986). The necessity of deterring others from similar acts has also been held invalid as a reason for departure. Smith v. State, 482 So. 2d 469 (Fla. 5th DCA 1986); Cason v. State, 481…
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Fabelo v. State, 488 So. 2d 915 (Fla. 2d DCA 1986)…ellant’s prior record is insufficient to support a deviation from the guidelines. As for the court’s departure based on a need to “protect the community from Carlos Fabelo,” this is clearly invalid and unsupported by the record. See Scott v. State, 484 So. 2d 100 (Fla. 1st DCA 1986); Fowler v. State, 482 So. 2d 602 (Fla. 5th DCA 1986); Lorenzo v. State, 483 So. 2d 790 (Fla. 4th DCA 1986). Finally, the factors surrounding the new charges of delivery and possession of cannabis are invalid grounds for departur…
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Braxton v. State, 519 So. 2d 60 (Fla. 2d DCA 1988)…s for departure from the sentencing guidelines are impermissible. The trial court’s reason that the appellant is a threat to society is invalid under the facts of this case. Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986); Scott v. State, 484 So. 2d 100 (Fla. 1st DCA 1986). The trial court’s reason involving the amount of drugs has been held by this court to be a valid reason for departure in trafficking or conspiracy to traffic in contraband cases. See e.g., Irwin v. State, 479 So. 2d 153 (Fla. 2…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985)
- Johnson v. State, 477 So. 2d 56 (Fla. 5th DCA 1985)
- Shelton v. State, 478 So. 2d 433 (Fla. 5th DCA 1985)
- Moore v. State, 483 So. 2d 37 (Fla. 1st DCA 1986)