DWAYNE A. SCOTT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Dwayne Scott appeals his 15-year sentence imposed outside sentencing guidelines for robbery and weapons charges. The appellate court reverses and remands for resentencing because the trial court relied on multiple invalid reasons for departing from the recommended 7-9 year guideline range.
The court reverses and remands for resentencing because at least four of the ten articulated reasons for departure from guidelines were invalid, and the court cannot be certain beyond a reasonable doubt that the trial court would have imposed the same sentence absent these invalid reasons.
[1] A trial court's departure from sentencing guidelines is improper if based on the defendant's prior felony convictions.
[2] A trial court's departure from sentencing guidelines is improper if based on a general statement that justice would not be served by imposing a guidelines sentence.
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Join FLexlaw to unlock all legal intelligence“Finding that, at a minimum, four of the ten articulated reasons for departure are invalid, we cannot be certain beyond a reasonable doubt that the trial court would have imposed the same sentence absent these reasons.”
Establishes the standard for reversal when multiple invalid sentencing reasons are found—the court cannot affirm without being certain the same sentence would result.
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Join FLexlaw to unlock all legal intelligenceScott was convicted of robbery, carrying a concealed weapon, and unlawful possession of a firearm. He received a 15-year sentence (with five years con…
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PER CURIAM.
Scott appeals from the imposition of a sentence outside of the guidelines. We reverse and remand for resentencing.
Scott was convicted for robbery, carrying a concealed weapon and unlawful possession of a firearm, for which he received a fifteen-year sentence, five years concurrent and a suspended sentence, respectively. In departing from the recommended sentence of seven to nine years, the trial court relied on the following reasons:
1. The victims have sustained psychological harm as a result of the crime.
2. The age of the victims, one 18 years of age, and one 70 years of age, made them extremely vulnerable to this crime.
3. The defendant’s total lack of respect for the criminal justice system, as evinced by his testimony in and during the trial.
4. The defendant has four prior felony convictions.
5. Justice would not be served by imposition of a Guidelines Sentence.
6. This was a violent and heinous act.
7. The defendant created a life-threatening situation, as evinced by his comment, “I’ll blow you away,” to the victim, while displaying a firearm.
8. The defendant, at age 24, has been given many opportunities at rehabilitation and has taken advantage of none of them.
9. The defendant’s comment, “I rob for a living,” shows a total lack of respect for the criminal justice system.
10. The defendant has shown no remorse for crimes he committed.
The state concedes the invalidity of reasons four, Hendrix v. State, 475 So. 2d 1218 (Fla.1985); five, see Decker v. State, 482 So. 2d 511 (Fla. 1st DCA 1986); and ten, State v. Mischler, 488 So. 2d 523 (Fla.1986).
The state, though conceding the invalidity of “lack of respect” as a reason for departure, contends that reason three is valid because it is based upon Scott’s perjury at trial. If reason three is indeed grounded in the fact that the trial court believed Scott had been untruthful, it is still an improper basis for departure. Edwards v. State, 482 So. 2d 553 (Fla. 2d DCA 1986); see also Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985) (though a finding that a defendant was untruthful at trial is clear and convincing, it is an invalid reason for departure).
Finding that, at a minimum, four of the ten articulated reasons for departure are invalid, we cannot be certain beyond a reasonable doubt that the trial court would have imposed the same sentence absent these reasons. Therefore, we are required to reverse and remand for resentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985).
Reversed and remanded for resentencing.
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Hendsbee v. State, 497 So. 2d 718 (Fla. 2d DCA 1986)…, 489 So. 2d 25 (Fla.1986); Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Disregard for the criminal justice system. An appellant’s disregard for the criminal justice system may not be used to depart from the sentencing guidelines. 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 198…
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Alphonso McNEALY v. State, 502 So. 2d 54 (Fla. 2d DCA 1987)…So. 2d 316 (Fla. 2d DCA 1986). 4. Appellant has been a discipline problem while in the county jail. Again, failure to cooperate and general disregard for the criminal justice system are invalid reasons to depart from the guidelines. Scott v. State, 488 So. 2d 146 (Fla. 3d DCA 1986). 5. Appellant’s prior record is far worse than the scoring reflects. The trial court’s disagreement with the sufficiency of the guideline sentence is an invalid reason for departure. Williams v. State, 492 So. 2d 1308 (Fla.1986).…
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Dixon v. State, 513 So. 2d 1378 (Fla. 3d DCA 1987)…tate, 475 So. 2d 1218 (Fla.1985); moreover, to the extent that the reason may mean to convey a lack of respect by the defendant for the criminal justice system, such a reason is an invalid basis for a sentencing guidelines departure. Scott v. State, 488 So. 2d 146 (Fla. 3d DCA 1986). The third and fourth reasons given above — that the defendant “had plenty of time to think before hitting the police officers,” and that the police officer attempted for fifteen minutes to persuade the defendant “to go peacefully…
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)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Juvenal Pina v. Pina, 475 So. 2d 1342 (Fla. 3d DCA 1985)
- Edwards v. State, 482 So. 2d 553 (Fla. 2d DCA 1986)
- Decker v. State, 482 So. 2d 511 (Fla. 1st DCA 1986)