ROBERT WAYNE PATTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Robert Wayne Patty appeals his sentencing for burglary while armed and grand theft of a firearm, challenging the trial judge's departure from Florida's sentencing guidelines. The appellate court found that two of the four reasons provided for the departure were invalid because they improperly relied on prior criminal convictions already factored into the guidelines calculation, requiring reversal and resentencing.
Two of the four reasons for departure were valid (use of dangerous weapon and insufficient deterrence), but two were invalid because they improperly relied on prior criminal convictions already scored in the presumptive sentence. Because the court could not conclude beyond a reasonable doubt that the invalid reasons did not affect the departure sentence, the case must be reversed and remanded for resentencing.
[1] A trial court may depart from sentencing guidelines when the offense involves the use of a dangerous weapon.
[2] A trial court may not depart from sentencing guidelines based on a defendant's prior criminal history if that history has already been scored in the presumptive sentence.
Previewing 2 of 5 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“it is improper to depart from the guidelines based upon a factor — prior criminal convictions — which has already been scored in the presumptive sentence”
Establishes the fundamental rule that prior convictions cannot be used as a basis for guideline departure since they are already factored into the sentence calculation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePatty pled guilty to burglary while armed (first degree felony) and grand theft of a firearm (third degree felony). The sentencing guidelines scoreshe…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
ERVIN, Judge.
Patty appeals from the imposition of a sentence outside of the guidelines. We reverse and remand for sentencing.
Patty pled guilty to burglary while armed, a first degree felony, and grand theft of a firearm, a third degree felony. The guidelines scoresheet recommended 5V2 to 7 years imprisonment. The trial judge departed from the guidelines range, sentencing Patty to 15 years for burglary while armed, and a one year concurrent sentence for grand theft. In departing from the guidelines, the trial judge stated:
1. The offense involved the use by the Defendant of a dangerous weapon.
2. The Defendant’s prior history of theft and dishonest behavior establishes a pattern of conduct that renders him a continuing and serious threat to the community. This prior criminal conduct has been committed over at least two separate states.
3. The Defendant has been committed to the state prison four previous times for the same or similar offenses, which indicates his lack of rehabilitation and his propensity to continue the same type of criminal activity.
4. The sentence prescribed by the Florids [sic] Sentencing Guidelines is insufficient to deter this Defendant.
The first reason for departure, defendant’s use of a dangerous weapon, is a valid reason for departure. Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986). The second reason, that defendant’s prior history of theft and dishonest behavior establishes a pattern of conduct rendering him a continuing and serious threat to the community, is an invalid reason for departure. In Casteel, this court stated that because such reason is based factually on a defendant’s prior convictions, it is an improper basis for a departure. Id. See also Hendrix v. State, 475 So. 2d 1218 (Fla.1985), wherein the Florida Supreme Court held it is improper to depart from the guidelines based upon a factor — prior criminal convictions — which has already been scored in the presumptive sentence.
We also find the trial judge’s third reason for departure invalid. Although we have held that “lack of rehabilitation” alone is a clear and convincing reason for departure, Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984); Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984); Williams v. State, 454 So. 2d 751, 753 (Fla. 1st DCA 1984), because the lower court linked such reason to defendant s prior convictions, it is improper.1 Casteel; Hendrix.
The fourth reason, that the recommended sentence is insufficient to deter the defendant, is a valid reason to depart. Mincey; Williams.
We conclude that two of the four reasons for departure are valid. However, we cannot conclude 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 (Fla.1985). Therefore, in accordance with Albritton, we reverse and remand for resentencing.
WIGGINTON, J., concurs.
McCORD, GUYTE P., Jr. (Ret.), Associate Judge, concurs specially.
. Cf. Williams v. State, 11 FLW 581 (Fla. 1st DCA March 5, 1986) (specific detailed description of frequency, pattern and timing of prior convictions may under certain cases be a proper basis for departure). However, in Casteel as well as in the case at bar, a blanket statement that a defendant’s prior convictions establishes a pattern of conduct and indicates a lack of rehabilitation (reasons two and three advanced as reasons for departure by the trial judge below), without more, is a clear violation of the Hendrix rule.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
-
Hester v. State, 503 So. 2d 1342 (Fla. 1st DCA 1987)…(Fla. 2d DCA 1986). As to the third reason (nonrehabili-tative), the trial court did not present any facts to support this reason, other than appellant’s pattern of criminal activity, and thus the reason is not clear and convincing. Patty v. State, 486 So. 2d 16 (Fla. 1st DCA 1986). As to the fourth reason (escalated pattern of criminality), the trial court relied on information contained in the PSI Report. Appellant objected to the PSI report on the ground that it contained hearsay testimony, but he did n…
-
Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986)…nt for counseling as a condition for probation. The court also expressed a dim view of appellant’s prospects for rehabilitation. This is not a valid reason for departure when, as here, it is predicated upon appellant’s prior record. Patty v. State, 486 So. 2d 16 (Fla. 1st DCA 1986). Our review of the current interpretations of sentencing guidelines leads us to the conclusion that the reasons relied upon for departure were legally invalid. We affirm the conviction but remand the case for resentencing within…
-
Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986)…ate, 475 So. 2d 1218, 1220 (Fla.1985). Furthermore, although the “lack of rehabilitation” alone is a clear and convincing reason for departure, when the rehabilitation reason is linked to defendant’s prior convictions it is improper. Patty v. State, 486 So. 2d 16 (Fla. 1st DCA 1986); Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986). Since all five reasons for departure are invalid and reason five falls into one of the specific categories requiring an appellate court to find that departure is improper und…
Previewing 3 of 13 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)
- Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984)
- Cunningham v. State, 481 So. 2d 72 (Fla. 4th DCA 1985)
- Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984)
- Williams v. State, 454 So. 2d 751 (Fla. 1st DCA 1984)