RENE MARTINEZ-DIAZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of burglary and grand theft and sentenced to five years total imprisonment (three years plus two years consecutive), exceeding the presumptive sentencing guidelines range of 12-30 months or community control. The appellate court reversed and remanded because the trial court's reasons for departing from the guidelines were either improper or failed to meet the required 'clear and convincing' standard.
The sentences are reversed and the case is remanded for resentencing within the presumptive guideline range. The trial court's reasons for departure were improper: the first reason (refusal of noncompulsory psychological counseling for a prior offense) was not a proper basis for departure, and the remaining reasons were overly broad and general, failing to meet the 'clear and convincing' standard required by law.
[1] A trial court's reason for departing from sentencing guidelines based on a defendant's prior refusal of non-compulsory rehabilitative treatment connected to a past offens…
[2] Broad and general reasons for departing from sentencing guidelines do not meet the clear and convincing standard required by rule.
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Join FLexlaw to unlock all legal intelligence“The presumptive range recommended pursuant to the sentencing guidelines was community control or twelve to thirty months incarceration. The trial court departed from the guidelines and sentenced appellant to three years imprisonment on the burglary charge and to two years imprisonment on the grand theft charge to run consecutively.”
Establishes the sentencing disparity between guidelines and the trial court's imposed sentence that forms the basis of the appeal.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted by jury of unarmed burglary of an occupied dwelling and grand theft of an automobile. The sentencing guidelines recommended co…
The full statement of facts, procedural history, and disposition for this case are member content.
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CAMPBELL, Judge.
Appellant appeals from the trial court’s imposition of a sentence enhanced beyond the guideline range. We reverse and remand for resentencing within the presumptive guideline range.
Appellant was charged by information with unarmed burglary of an occupied dwelling in violation of section 810.02, Flor ida Statutes (1983), and grand theft of an automobile in violation of section 812.014, Florida Statutes (1983). A jury found appellant guilty. The presumptive range recommended pursuant to the sentencing guidelines was community control or twelve to thirty months incarceration. The trial court departed from the guidelines and sentenced appellant to three years imprisonment on the burglary charge and to two years imprisonment on the grand theft charge to run consecutively.
The court’s reasons for departure, as set forth in a separate written order, were as follows:
1. The Defendant has previously been afforded an alternative from incarceration in an attempt toward rehabilitation and has shown a disregard for said alternative avenue of rehabilitation.
2. The Defendant is a threat to the people and property of the State of Florida as long as he remains at liberty.
3. The recommended range of twelve to thirty months incarceration under the sentencing guidelines is not reasonable under the facts and circumstances of this case.
4. Due to the nature of this crime, and the reasons set forth above, this Court finds that the sentencing guidelines are inappropriate and do not meet the requirements of this case.
Focusing on the trial court’s first reason for departure, an examination of the record reveals that the “alternative from incarceration” referred to was an opportunity for appellant to undergo psychological counseling in conjunction with a previous offense committed in Dade County. Since the counseling was connected with a past offense, appellant’s refusal to undergo such treatment is not a proper reason for deviation. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Additionally, the invalidity of reason one is magnified by the fact that the treatment was noncompulsory. See Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985).
Reasons two, three and four are impermissible reasons for departure because they do not meet the “clear and convincing” standard set forth in Florida Rule of Criminal Procedure 3.701(d)(ll). Hendrix. We find it necessary to characterize reasons two, three and four as “broad and general.” Clearly, “broad and general” does not equate with “clear and convincing.” See Fla.R.Crim.P. 3.701(d)(ll).
Based on the foregoing, the sentences are reversed and the case is remanded for resentencing within the presumptive range recommended pursuant to the sentencing guidelines.
LEHAN and SANDERLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Middleton v. State, 489 So. 2d 201 (Fla. 2d DCA 1986)…or protection of society as a stated basis for departure from the guidelines can be set forth: (1) Need for Protection of Society Alone, Without Explanation, Not Enough Lorenzo v. State, 483 So. 2d 790 (Fla. 4th DCA 1985). Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986). Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986). (2) Need for Protection of Society Based Upon Pattern of Conduct Shown by Defendant’s Prior Record As Explained by Trial Court May Be Enough Agatone v. State, 474 So. 2d 84…
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Williams v. State, 493 So. 2d 48 (Fla. 2d DCA 1986)…The following reasons given by the trial court are invalid: (1) the defendant’s prior record, see Hendrix v. State, 475 So. 2d 1218 (Fla.1985); and (2) the necessity to protect the public from further criminal activity, see Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986). The trial court’s reason that defendant was on probation when he committed the instant offenses is also improper. Defendant received six points under legal constraint on his guideline scoresheet for his probationary status. Sinc…
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Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986)…ible because it related to an offense for which a conviction was not obtained. See Dawkins v. State, 487 So. 2d 63 (Fla. 2d DCA 1986). The trial court’s reason that the defendant was a threat to society was impermissible. See Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986). Reversed and remanded for sentencing within the presumptive guidelines range or one cell higher for the violation of probation. CAMPBELL, A.C.J., and LEHAN and FRANK, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)