ROY LEE NEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roy Lee Neal appeals his convictions and sentences for aggravated assault and shooting within a building, challenging the trial court's departure from sentencing guidelines. The appellate court affirmed the convictions but reversed and remanded the sentences, finding the trial judge improperly relied on perjury, the facts of the offense, and unexplained prior DUI convictions to justify the departure.
The trial court improperly departed from sentencing guidelines. The court reversed Neal's sentences and remanded for resentencing, holding that perjury is an impermissible basis for departure, the facts of the offense showed no egregious circumstances warranting departure, and the prior DUI convictions could not support departure without documentation that they occurred more than ten years before the instant offenses.
[1] A trial court may not depart from sentencing guidelines based on a defendant's alleged perjury.
[2] Facts surrounding the instant offense do not constitute an impermissible reason for departure from sentencing guidelines absent egregious circumstances.
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Join FLexlaw to unlock all legal intelligence“Perjury is clearly an impermissible reason for departure.”
Establishes that the trial judge's reliance on alleged perjury to justify sentencing departure was improper as a matter of law.
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Join FLexlaw to unlock all legal intelligenceA jury convicted Neal of aggravated assault and shooting within a building. His sentencing guidelines scoresheet showed 46 points, recommending a non-…
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SCHEB, Judge.
Defendant Roy Lee Neal appeals his judgments and sentences for aggravated assault and shooting within a building, violations of sections 784.021 and 790.19, Florida Statutes (1983). His sole contention is that in sentencing him, the trial court improperly departed from the sentencing guidelines. We agree.
A jury found defendant guilty of these offenses. At the sentencing hearing, defendant’s guidelines scoresheet indicated a total of forty-six points which translated into a recommended sentence of any non-state-prison sanction. A presentence investigation (PSI) report was introduced indicating defendant had two prior convictions for driving under the influence (DUI). However, the report did not show when defendant had committed these two prior offenses. No points were calculated on the scoresheet for the DUI offenses.
The trial judge sentenced defendant to three years for shooting within the building and sixty days for the assault. The judge based his decision to depart from the recommended guidelines sentence on the defendant’s alleged perjury, the facts surrounding the instant offense, and defendant’s prior DUI convictions.
Perjury is clearly an impermissible reason for departure. Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986); Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985). The other two reasons present more troublesome issues in this case.
In departing, the judge recited briefly the facts leading to defendant’s arrest on the two charges for which he was convicted and sentenced here. Yet, the facts in this case do not show any egregious circumstances on which to base a departure. See Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986). Thus, the facts surrounding these two offenses constituted an impermissible reason for departure.
As to the last reason, since the record does not indicate when defendant’s two DUI offenses occurred, we cannot determine whether they would be a permissible reason for departure. Of course, if these convictions occurred within ten years of the instant offenses, they should have been scored. See Fla.R.Crim.P. 3.701(d)(5)(b). However, the scoring of these DUI convictions would not change the recommended sentence. Thus, on the record before us we cannot say that defendant’s prior DUI convictions were a permissible reason for departure. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
Accordingly, we affirm the defendant’s convictions for assault and shooting within a building, but we reverse his sentences for these offenses and remand the case for resentencing. If, on remand, the trial judge chooses to depart on basis of the prior convictions, the record must include documentation that these offenses did not occur within the last ten years. The defendant may appeal any such departure. If the judge does not depart for this reason, he must sentence defendant within the guidelines. Crews v. State, 477 So. 2d 1093 (Fla. 2d DCA 1985).
RYDER, C.J., and SANDERLIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Washington v. State, 501 So. 2d 133 (Fla. 2d DCA 1987)…a trial court may depart from the sentencing guidelines upon the facts of the case. Mora v. State, 484 So. 2d 621 (Fla. 2d DCA 1986). However, the facts must show egregious circumstances and must not be elements of the crime charged. Neal v. State, 487 So. 2d 367 (Fla. 2d DCA 1986); Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986). In the instant case, appellant was apprehended for shoplifting. She broke away from the security guards and fled into the men’s department where she discarded the items. Appa…
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Bogan v. State, 489 So. 2d 157 (Fla. 2d DCA 1986)…t also relied upon the facts of the instant case to support its departure. These facts, however, reveal nothing egregious in the circumstances surrounding the commission of the crime so as to warrant departure from the guidelines. See Neal v. State, 487 So. 2d 367 (Fla.2d DCA 1986). Similarly, the appellant’s asserted perjury at trial, without subsequent conviction, and the appellant’s past record of convictions, are invalid reasons. Edwards v. State, 482 So. 2d 553 (Fla.2d DCA 1986). Accordingly, the appell…
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Evrard v. State, 502 So. 2d 3 (Fla. 4th DCA 1986)…State, 483 So. 2d 404 (Fla.1985); Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986). However, a trial court may not depart from the recommended guidelines sentence based upon the court’s belief that the defendant lied to the court. Neal v. State, 487 So. 2d 367 (Fla. 2d DCA 1986); Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986); Jones v. State, 481 So. 2d 516 (Fla. 4th DCA 1985); McBride v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985). We find that the…
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)
- Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986)
- Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)
- Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986)
- Crews v. State, 477 So. 2d 1093 (Fla. 2d DCA 1985)
- Bowen v. Carnival Cruise Lines, Inc., 477 So. 2d 1093 (Fla. 3d DCA 1985)