ABRAHAM DAWKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Abraham Dawkins appealed his convictions for cocaine possession and carrying a concealed weapon, challenging the trial court's departure from sentencing guidelines. The appellate court affirmed the convictions but reversed and remanded the sentences because five of the six reasons cited for departure were improper.
The court affirmed the convictions but reversed the sentences and remanded for resentencing because five of the six reasons cited for departure were invalid. Only the military AWOL violations constituted a permissible reason for departure.
[1] A prior military discharge for being AWOL on multiple occasions may constitute a permissible reason for departure from sentencing guidelines.
[2] Crimes already calculated into sentencing guidelines cannot serve as an independent basis for departure.
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Join FLexlaw to unlock all legal intelligence“We believe that the AWOL violations constitute a permissible reason for departure because they are objective manifestations of appellant's nonconformance to social norms and are indicative of appellant's unlikeliness as a candidate for rehabilitation.”
Establishes the court's standard for what constitutes a valid basis for sentencing departure.
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Join FLexlaw to unlock all legal intelligenceDawkins was convicted of possession of cocaine and carrying a concealed weapon. At sentencing, the guidelines scoresheet showed a presumptive sentence…
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GRIMES, Acting Chief Judge.
This is an appeal from the judgments and sentences . resulting from convictions for possession of cocaine and carrying a concealed weapon. We find merit only in appellant’s assertion that the trial court departed from the guidelines based on improper reasons.
At the sentencing hearing, a guidelines scoresheet was prepared showing a presumptive sentence of any nonstate prison sanction. However, the trial court departed from the guidelines and sentenced appellant to three years in prison on the possession of cocaine charge and to one year in prison on the concealed weapon charge to run concurrently.
We shall address each of the court’s written reasons for departure:
(1) Appellant’s undesirable discharge from the military for being AWOL on two occasions, once for more than a year. We believe that the AWOL violations constitute a permissible reason for departure because they are objective manifestations of appellant’s nonconformance to social norms and are indicative of appellant’s unlikeliness as a candidate for rehabilitation. See Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985); Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984).
(2) Prior conviction for substance abuse. Crimes which have already been calculated into the guidelines cannot be a basis for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
(3) Circumstances of a previous arrest not associated with this conviction. Florida Rule of Criminal Procedure 3.701(d)(ll) precludes consideration of factors relating to prior arrests without conviction.
(4) Crimes occurred in a high crime area. Cases such as Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984), and Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984), indicate that the timing and location of repeated offenses can constitute a valid reason for departure. However, we cannot see how the circumstance that the subject offenses were committed in a high crime area, standing by itself, can justify departure.
(5) Since appellant possessed a substantial amount of cocaine and $275 at the time of his arrest, he must be in the business of selling cocaine. Florida Rule of Criminal Procedure 3.701(d)(ll) also precludes consideration of factors relating to the instant offenses for which convictions have not been obtained.
(6) Possession of an operable, concealed, and loaded firearm. Although appellant was charged with carrying a concealed firearm, the jury convicted him only of carrying a concealed weapon. Therefore, as in (5) above, the reference to the concealed firearm is a factor relating to the instant offense for which a conviction has not been obtained.
When a departure is based on both permissible and impermissible reasons, the sentence should be reversed and the case remanded for resentencing unless the state is able to show 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). While the trial judge made some strong comments after the verdicts concerning the appellant’s conduct, the fact remains that five of the six reasons he relied upon for departure were invalid. Accordingly, we affirm appellant’s convictions but reverse the sentences and remand for resentencing.
FRANK and HALL, JJ., concur.
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Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)…er, is buttressed by any supporting reasoning beyond an announcement of the conclusion; the only case relied upon — aside from each of the decision’s citation of another for the same bootstrapped holding — is Hudson's reliance upon Dawkins v. State, 487 So. 2d 63 (Fla. 2d DCA 1986), which is inapplicable because probation was not involved. With respect, I am not persuaded by these cases. It should be noted also that, although it is true that, in fact, the probationers in Pentaude and Cahill were convicted o…
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Hendsbee v. State, 497 So. 2d 718 (Fla. 2d DCA 1986)…Scott v. State, 488 So. 2d 146 (Fla. 3d DCA 1986). Factors relating to a different offense. The trial court may not use factors related to an offense for which conviction was not obtained to depart from the sentencing guidelines. Dawkins v. State, 487 So. 2d 63 (Fla. 2d DCA 1986). We affirm appellant’s convictions and sentences for Counts II and III. We reverse appellant’s sentence for Count I and remand for resentencing within the guidelines presumptive sentencing range. Affirmed in part; reversed in pa…
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Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986)…reason that the defendant, while on probation, was in possession of cocaine under circumstances indicating that he was selling cocaine was impermissible 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…
Previewing 3 of 7 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)
- Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984)
- Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984)
- Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984)
- Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985)