JEROME LEE, 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.
The court held that the trial court erred in scoring victim injury points and using two score sheets, and that the reasons for departure were not clear and convincing, requiring reversal and remand for resentencing.
[1] A trial court errs in using multiple score sheets for sentencing.
[2] The use of multiple score sheets may be harmless error if the court did not rely on both, but reliance on multiple score sheets can affect the decision to depart from sen…
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 intelligenceAppellant was sentenced for aggravated assault and resisting arrest with violence, departing from the guidelines. The trial court used two score sheet…
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.
Explore caselaw by topic → Browse Harmful Error Analysis cases and more on FLexlaw
COBB, Chief Judge.
Appellant, Jerome P. Lee, appeals from his sentence of two consecutive five-year terms of imprisonment, a seven-year departure from the guidelines, imposed for the offenses of aggravated assault and resisting arrest with violence. He has presented four issues for review and two of them compel a reversal.
Appellant first contends that the trial court erred in scoring victim injury points for his primary offense of aggravated assault because victim injury is not an element of this offense. Appellant is cor rect in this argument. See Fla.R.Crim.P. 3.701(d)(7); Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985). However, the state points out that this error is harmless because a correct computation of appellant’s recommended guideline sentence would still result in a recommendation of three years’ incarceration.
Appellant next contends that the trial court erred in using two score sheets to sentence him. This was clearly error. See Fla.R.Crim.P. 3.701(d)(1).
The state contends in its brief that the trial court did not rely on both score sheets and thus the error was harmless.
However, the preamble to the trial court’s order regarding its reasons for departure demonstrates that the state is incorrect. Specifically, the order states that “[t]he sentencing guidelines score sheet prepared on this Defendant reflects a point total of 127 and 74, with a recommended sentencing range of three years on each.” (Emphasis added.) This language indicates that not only did the trial court rely on both score sheets, but also that the court thought that “three years each” was permitted under the guidelines; thus, the use of the score sheets may have affected the court’s decision to depart to the maximum of five years each.
Appellant’s third argument is that the trial court erred in not verbally expressing his reasons for departure at the time of sentencing. He contends this was error because the committee note to Rule 3.701(d)(ll) provides that “Reasons for departure shall be articulated at the time sentence is imposed.” (Emphasis added.) This issue has apparently never been decided by the appellate courts, but we believe that the rule was not intended to be applied as appellant suggests. Although appellant may have “been deprived of the opportunity to challenge the reason for departure at his sentencing hearing,” and may have been forced “to use a post-conviction motion or an appeal to challenge what may be improper reasons,” as contended in his brief, he has not been prejudiced. The primary purpose of the requirement that reasons for departure be articulated is to provide meaningful appellate review. See State v. Jackson, 478 So. 2d 1054 (Fla.1985).
This brings us to appellant’s final argument, which is that the trial court departed from the guidelines for reasons that were not clear and convincing. As noted by the state, the trial court’s reasons appear to be best summarized as follows: (1) risk to physical safety of both citizens and law enforcement officers during the offense; (2) appellant’s criminal history demonstrates that appellant has engaged in ongoing violent criminal conduct; (3) una-menability to previous attempts at rehabilitation or probation; (4) disregard for the laws imposed by society and the criminal justice system. Under Hendrix v. State, 475 So. 2d 1218 (Fla.1985), it appears at a minimum that reasons two1 and four are invalid. Also, while unamenability to previous attempts at rehabilitation or probation (reason number 3) appears still to be a valid reason for departure, see Keen v. State, 481 So. 2d 1274 (Fla. 5th DCA 1986), it is questionable whether risk to physical safety of others (reason number one) remains a valid reason for departure. See Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986); see also Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986) (court states that risk to lives of others “may be appropriate” reason for departure but notes that the record did not clearly support trial judge’s findings in that case).
But see Hannah v. State, 480 So. 2d 718 (Fla. 4th DCA 1986).
In any event, because at least two and possibly three of the four reasons provided by the trial court appear to be invalid, this case must be reversed and remanded for resentencing. See Albritton v. State, 476 So. 2d 158 (Fla.1985).
On remand the trial court is instructed to use one score sheet with aggravated assault as appellant’s pri mary offense and no points should be scored for victim injury.
REVERSED and REMANDED.
ORFINGER and COWART, JJ., concur. . While an escalating pattern of violent criminal conduct appears still to be a valid reason for departure, see Keen v. State, 481 So. 2d 1274 (Fla. 5th DCA 1986); Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985), “ongoing violent criminal conduct” is merely another way of stating that appellant has a bad "prior record,” prohibited under Hendrix.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Beasley v. State, 503 So. 2d 1347 (Fla. 5th DCA 1987)…ed battery. Inscore v. State, 480 So. 2d 218 (Fla. 4th DCA 1985). Other decisions have held that victim injury cannot be scored where it is not an element of the offenses charged. Vaillant v. State, 490 So. 2d 1326. (Fla. 3d DCA 1986); Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986); Smith v. State, 484 So. 2d 649 (Fla. 4th DCA 1986); Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985), affirmed, 487 So. 2d 1045 (Fla.1986). Since appellant was charged with attempted sexual battery, victim contact and the…
-
Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986)…arture. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). While an escalating pattern of criminal conduct has been held sufficient, Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985), an ongoing history of violence has been deemed invalid. Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986). The presentence report refers to the need to incarcerate appellant for the protection of the community. Yet, in Middleton v. State, 489 So. 2d 201 (Fla., 2d DCA 1986), our court recently held invalid a similar departure grounde…
-
Brown v. State, 569 So. 2d 1223 (Fla. 1990)…PER CURIAM. We have for review Brown v. State, 535 So. 2d 671 (Fla. 1st DCA 1988), based on express and direct conflict with Hendsbee v. State, 497 So. 2d 718 (Fla. 2d DCA 1986), and Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Brown was convicted in 1983 of two counts of armed robbery and one count each of kidnapping and battery on a law enforcement officer in connection with a bank robbery. He had…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- 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)
- F.Y. Scutti v. Daniel E. Adache & Assocs. Architects, P.A., 480 So. 2d 718 (Fla. 4th DCA 1986)
- Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985)
- Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985)
- Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986)
- Keen v. State, 481 So. 2d 1274 (Fla. 5th DCA 1986)
- Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986)