ROBERT MICHAEL CAWTHON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Cawthon appeals his conviction and 27-year departure sentence for armed burglary, grand theft, possession of burglary tools, and attempted aggravated assault. The court affirms the conviction but vacates and remands for resentencing because the trial judge relied on invalid reasons (prior criminal history already counted in sentencing guidelines) alongside valid reasons for the departure sentence.
The court affirmed the conviction because witness testimony concerning jewelry value was sufficient to support the $100+ determination. However, the court held that three of the four reasons for departure were invalid because they relied on prior criminal record that had already been counted as 121 points in the sentencing guidelines. The court also held that habitual offender status was not properly established without written notice and required findings. Valid reasons for departure (use of excessive force, disregard for multiple victims' safety, escalating criminal activity) existed but could not justify the sentence given the trial judge's reliance on invalid reasons.
[1] A witness's testimony regarding the value of stolen jewelry is sufficient to support a jury's determination that the items were worth $100.00 or more.
[2] A defendant's status as a habitual offender cannot justify a departure sentence if proper written notice and required findings were not made prior to sentencing.
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“The first three reasons are not sufficient grounds to justify a departure, in our view, to the extent they are based on Cawthon's prior criminal record, for which he received a bonus of 121 points.”
Establishes that prior criminal history already scored in guidelines cannot be used again as a departure reason.
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Join FLexlaw to unlock all legal intelligenceCawthon was convicted of armed burglary of a dwelling, second degree grand theft, possession of burglary tools, and attempted aggravated assault. Jewe…
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SHARP, Judge.
Cawthon appeals from his conviction and sentence for armed burglary of a dwelling,1 second degree grand theft,2 possession of burglary tools,3 and attempted aggravated assault.4 He was given a “departure sentence” under the guidelines of twenty-seven years in prison, two brackets up from the presumptive sentence range.5 We affirm his conviction because we think the witness’ evidence at trial concerning the value of the jewelry stolen was sufficient to support the jury’s determination it was worth $100.00 or more. However, we agree error occurred concerning the departure sentence.
The trial judge set out the following reasons for departure on the scoresheet:
1. Defendant is an habitual offender whose modus operandi is to burgle residences and steal jewelry.
2. Def. is poor prospect for rehabilitation given his numerous contacts with the criminal courts and his ab- seonding from the New Jersey parole authorities.
8. Def. has served penal time in the past for burglaries and thefts and has continued to commit these type of offenses.
4. Def. acted in reckless disregard for the safety of innocent people, including minors, by displaying and threatening to use a weapon; which is also an escalating of severity in his criminal activities.
The first three reasons are not sufficient grounds to justify a departure, in our view, to the extent they are based on Cawthon’s prior criminal record, for which he received a bonus of 121 points. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). His status as a habitual offender pursuant to section 775.084 was not properly established in the record, as no written notice to appellant was given prior to sentencing, pursuant to section 775.084(3)(b) and no required findings were made by the trial judge pursuant to section 775.084(3)(d).6
The final reasons given by the court, use of excessive force, disregard for the safety of multiple victims, and an escalating pattern of criminal activity may be upheld as valid grounds for departure sentences.7 However, we are unable to conclude, beyond a reasonable doubt, that the trial judge would have given the same sentence had he not relied on invalid as well as valid reasons. Albritton v. State, 476 So. 2d 158 (Fla.1985). Accordingly, we vacate the sentence and remand for resentencing.
AFFIRM; VACATE SENTENCE AND REMAND FOR RESENTENCING.
DAUKSCH and UPCHURCH, JJ., concur. . § 810.02(2), Fla.Stat. (1983).
. § 812.014, Fla.Stat. (1983).
. § 810.06, Fla.Stat. (1983).
. §§ 784.021(l)(a) & 777.04(1), Fla.Stat. (1983).
. Fla.R.Crim.P. 3.701(d)(ll).
. Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985).
. See Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986); Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985); Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985); Sloan v. State, 472 So. 2d 488 (Fla.2d DCA 1984); Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984).
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Tyner v. State, 491 So. 2d 1228 (Fla. 2d DCA 1986)…idelines. Thompson v. State, 483 So. 2d 1 (Fla. 2d DCA 1985). Departures have also been upheld where the manner in which the crime was committed endangered the safety of others. Campbell v. State, 486 So. 2d 61 (Fla. 4th DCA 1986); Cawthon v. State, 486 So. 2d 90 (Fla. 5th DCA 1986). Notwithstanding, Florida Rule of Criminal Procedure 3.701(d)ll states, “Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.” In most…
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Williams v. State, 500 So. 2d 604 (Fla. 5th DCA 1986)…ncarcerated for 17 years, the trial court relied on both valid and invalid reasons. We summarize and discuss the grounds given. A. Escalating course of criminal conduct. While this has been held to be a valid reason for departure, Cawthon v. State, 486 So. 2d 90 (Fla. 5th DCA 1986); May v. State, 475 So. 2d 1004 (Fla. 5th DCA 1985), this finding must be supported by the record. Brown v. State, 483 So. 2d 857 (Fla. 5th DCA 1986). While defendant was quite active in his criminal career, all of the offenses re…
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Teehan v. State, 488 So. 2d 132 (Fla. 3d DCA 1986)…score v. State, 480 So. 2d 218, 219 (Fla. 5th DCA 1985); Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985). It was also error to aggravate the sentence for the reasons pronounced. Albritton v. State, 476 So. 2d 158 (Fla.1985); Cawthon v. State, 486 So. 2d 90 (Fla. 5th DCA 1986); Patty v. State, 486 So. 2d 16 (Fla. 1st DCA 1986); Battles v. State, 482 So. 2d 540 (Fla. 3d DCA 1986). Therefore the sentence under review is reversed and the matter is returned to the trial court for resentencing. Reversed…
Previewing 3 of 5 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)
- Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984)
- Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)
- Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985)
- Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985)
- Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985)
- Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986)