DARRYL BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darryl Brown appeals his sentence for violating community control conditions, arguing the trial court improperly departed from sentencing guidelines without clear and convincing reasons. The appellate court agrees, finding the court's four-cell departure unjustified and vacates the sentence for resentencing.
The trial court did not provide clear and convincing reasons to support the four-cell departure. While a one-cell departure is proper upon a probation violation without additional justification, departures beyond the next higher cell require clear and convincing reasons beyond the violation itself. The court's stated reasons—continued substance abuse, refusal to comply with sentencing programs, and insufficient remorse—are insufficient to justify the departure.
[1] A departure from the sentencing guidelines requires clear and convincing reasons when the sentence imposed exceeds the next higher cell above the recommended range.
[2] Continued substance abuse, without more, is not a sufficiently egregious reason to justify a departure from the sentencing guidelines beyond the next higher cell for a vi…
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Join FLexlaw to unlock all legal intelligence“departures from the guideline range should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence”
Establishes the foundational principle that sentencing guideline departures require clear and convincing reasons
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Join FLexlaw to unlock all legal intelligenceIn May 1984, Brown pleaded guilty to sexual battery and received community control for two years followed by thirteen years of probation. In March 198…
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SCHEB, Judge.
Appellant Darryl Brown challenges his sentence imposed upon a finding that he violated certain conditions of his community control. Specifically, he argues that the trial court erred in departing from the recommended range of the sentencing guidelines without giving clear and convincing reasons. Appellant is correct.
In May 1984 appellant pled guilty to a charge of sexual battery. The court withheld adjudication and placed appellant on two years’ community control to be followed by thirteen years of probation. In March 1985 the court modified some of the special conditions of appellant’s probation and community control because appellant admitted to using marijuana on several occasions and had not complied with the conditions of a prescribed program of rehabilitation.
Shortly thereafter an affidavit was filed stating that appellant had violated the conditions of his community control by possessing and using marijuana and by failing to successfully complete an alcohol treatment program. Appellant admitted these violations, and following a hearing, the court revoked appellant’s community control and probation.
Appellant’s guidelines scoresheet reflected a score of 202 points. With an increase of one cell based on the violation of probation, this score corresponded to a recommended sentence of three and one-half to four and one-half years’ imprisonment. Fla.R.Crim.P. 3.988(b). The court departed from the guidelines and sentenced appellant to serve ten years in prison, a penalty four cells higher than that recommended by the guidelines. The court’s written reasons for departure were as follows:
Violation of probation through continued substance abuse. Def. refuses to adhere to requirements of alternate sentencing program and is remorseful only for the sentence he is receiving.
This timely appeal ensued.
Florida Rule of Criminal Procedure 3.701(d)(ll) provides that “departures from the guideline range should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence.” Where a defendant has violated his probation, it is entirely proper for the trial judge to impose a sentence within the next higher cell of the guidelines without giving additional clear and convincing reasons. Fla.R.Crim.P. 3.701(d)(14). Likewise, this is proper for a violation of community control. Williams v. State, 479 So. 2d 861 (Fla. 4th DCA 1985). However, where, as here, the sentence imposed is in excess of the next higher cell, a departure must be supported by a clear and convincing reason other than a single violation of community control. See Carlisle v. State, 485 So. 2d 26 (Fla. 1st DCA 1986); Irving v. State, 484 So. 2d 78 (Fla. 2d DCA 1986).
We find that the court in the instant case did not provide clear and convincing reasons to support its four cell departure. Although the court noted that the underlying reason for appellant’s violation was his “continued substance abuse,” this is not sufficiently egregious to justify more than the one cell departure already allowed for the fact of the violation. Compare Dohn v. State, 482 So. 2d 564 (Fla. 2d DCA 1986); Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985). Likewise, the appellant’s refusal to “adhere to the requirements of alternate sentencing,” as it relates to a single violation of community control, is insufficient by itself to justify departure.
Finally, the court’s statement that appellant “is remorseful only for the sentence he is receiving” is not a clear and convincing reason for departure. See State v. Mischler, 488 So. 2d 523 (Fla.1986); Gale v. State, 483 So. 2d 53 (Fla. 1st DCA 1986); Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986); Kossow v. State, 468 So. 2d 1104 (Fla. 2d DCA 1985).
Accordingly, we vacate appellant’s sentence and remand for resentencing within the guidelines.
GRIMES, A.C.J., and SANDERLIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Watkins v. State, 498 So. 2d 576 (Fla. 3d DCA 1986)…the directives, (emphasis supplied). The court not only factored the defendant’s legal status at the time of the offense into the guidelines scoresheet but also used the same legal status as a basis for departure from the guidelines. Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986); see Riddle v. State, 488 So. 2d 903 (Fla. 5th DCA 1986); Hutchinson v. State, 479 So. 2d 267 (Fla. 1st DCA 1985). For these reasons, we hold that resentencing is required. Watkins also asserts that his attorney failed to provide…
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Chiodo v. State, 489 So. 2d 159 (Fla. 2d DCA 1986)…al convictions, without more, to depart from the presumptive sentence. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Thus, only when the offenses committed on probation are quite egregious will further departure be warranted. See Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986). Accordingly, the appellant’s sentence is reversed and this cause is remanded for resentencing. RYDER, C.J., and HALL, J., concur.…
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Pratt v. State, 520 So. 2d 640 (Fla. 1st DCA 1988)…PER CURIAM. AFFIRMED. See Williams v. State, 479 So. 2d 861 (Fla. 4th DCA 1985), rev. den., 488 So. 2d 69 (Fla.1986); Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986). BOOTH, WIGGINTON and ZEHMER, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- Kossow v. State, 468 So. 2d 1104 (Fla. 2d DCA 1985)
- Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986)
- Irving v. State, 484 So. 2d 78 (Fla. 2d DCA 1986)
- Gale v. State, 483 So. 2d 53 (Fla. 1st DCA 1986)
- Williams v. State, 479 So. 2d 861 (Fla. 4th DCA 1985)
- Dohn v. State, 482 So. 2d 564 (Fla. 2d DCA 1986)
- Carlisle v. State, 485 So. 2d 26 (Fla. 1st DCA 1986)