PHILLIP J. FULLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Phillip J. Fuller was convicted of armed robbery and sentenced to life imprisonment, exceeding the sentencing guidelines recommendation of 9-12 years. The appellate court found that while some of the trial judge's reasons for departing from guidelines were valid, others were invalid, requiring remand for resentencing because it was not clear beyond a reasonable doubt that the invalid reasons did not affect the departure decision.
The court held that while the majority of the twenty reasons for departure were not clear and convincing, some valid reasons existed relating to the appellant's dangerousness and pattern of violent behavior. Because the departure was grounded on both permissible and impermissible reasons and it was not clear beyond a reasonable doubt that the invalid reasons did not affect the departure, the case must be remanded for resentencing.
[1] A trial court's departure from sentencing guidelines is invalid if based on impermissible reasons.
[2] A departure sentence will be reversed unless the state can show beyond a reasonable doubt that the absence of invalid reasons would not have affected the departure senten…
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Join FLexlaw to unlock all legal intelligence“those reasons which refer to appellant's course of conduct showing that he is a danger to society, continues a pattern of violent behavior, and has a lack of regard for the law and judicial system, together with his resistance to rehabilitation, are valid reasons upon which to justify a departure”
Establishes which of the trial judge's reasons for departure were legally sufficient
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Join FLexlaw to unlock all legal intelligencePhillip J. Fuller was charged with and convicted of armed robbery after a jury trial. The sentencing guidelines prescribed a sentence of 9 to 12 years…
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HALL, Judge.
Appellant, Phillip J. Fuller, was charged with armed robbery. Pursuant to a jury trial he was convicted as charged and sentenced to life imprisonment. Appellant raised two points on appeal. We find no merit to his first point on appeal but agree that the court improperly departed from the guidelines and, accordingly, remand for resentencing.
While the sentencing guidelines prescribed a sentence of nine to twelve years, the trial judge elected to depart from the guidelines and sentenced appellant to life imprisonment. The trial judge listed twenty reasons as a basis for this departure. Appellant contends that the reasons used for departure are invalid. We agree that the majority of the reasons listed for departure are not clear and convincing reasons. However, those reasons which refer to appellant’s course of conduct showing that he is a danger to society, continues a pattern of violent behavior, and has a lack of regard for the law and judicial system, together with his resistance to rehabilitation, are valid reasons upon which to justify a departure. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985); Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986).
According to our supreme court unless an appellate court can determine beyond a reasonable doubt that the trial court would have departed regardless of the invalid reasons, we must remand for resentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985); State v. Young, 476 So. 2d 161 (Fla.1985).
In Albritton the supreme court holds that the sentence should be reversed 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.” Id. at 160 (emphasis added). To apply this test literally would re quire that we remand for resentencing every departure case where the state fails to carry this prodigious burden, even though it is apparent to the appellate court from an examination of the record that the trial judge will again depart upon remand based upon his valid reasons. While we recognize the intent of the guidelines to promote uniformity of sentences and the efforts of the supreme court to effectuate that intention, some consideration must be given to the costs incurred by the people of this state to transport prisoners for resentencing as a result of the guidelines. This has become an extraordinary burden, and we wonder if it is justified.
Since this departure is grounded on permissible and impermissible reasons, we remand for resentencing as it is not clear beyond a reasonable doubt whether the invalid reasons affected the court’s departure.
Should the trial court again determine to depart from the guidelines, it should be guided by the following cases. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985).
CAMPBELL, A.C.J., and SCHOON-OVER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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White v. State, 548 So. 2d 765 (Fla. 1st DCA 1989)…xplained its reasons for departure as follows: (1) The defendant exhibits a continuing course of conduct and violent behavior that indicates a total lack of regard for the law and judicial system and a resistance to rehabilitation. Fuller v. State, 488 So. 2d 594 (2nd DCA 1986). (2) The defendant’s behavior demonstrates a total disregard for the rights of others and indicates an escalating pattern of criminality. Kiser v. State, 455 So. 2d 1071 (1st DCA 1984); Keys v. State, 500 So. 2d 134 (Fla.1986); Harri…
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Santana v. State, 507 So. 2d 680 (Fla. 2d DCA 1987)…t’s , prior criminal history which are factored in to arrive at a presumptive guidelines sentence. Therefore, there is no prohibition against basing a departure sentence on such factors. 504 So. 2d at 393 (emphasis added); see also Fuller v. State, 488 So. 2d 594 (Fla. 2d DCA 1986) (lack of respect for the law and judicial system is a valid departure reason). We therefore affirm as to this reason also. When both valid and invalid reasons are found, the sentence must be reversed and remanded for resentencing…
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Washington v. State, 501 So. 2d 133 (Fla. 2d DCA 1987)…fting, this disturbance was not shown by the record to have been an egregious enough circumstance to justify departure. Failure to be rehabilitated by previous prison term is an improper ground for departure in the instant case. In Fuller v. State, 488 So. 2d 594 (Fla. 2d DCA 1986), we held that the following group of reasons were proper for departure from the sentencing guidelines: “those reasons which refer to appellant’s course of conduct showing that he is a danger to society, [*136] continues a pattern…
Previewing 3 of 14 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)
- State v. Young, 476 So. 2d 161 (Fla. 1985)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- Cunningham v. State, 481 So. 2d 72 (Fla. 4th DCA 1985)
- Serge v. Dreher, 474 So. 2d 846 (Fla. 4th DCA 1985)
- Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985)