PIERRE REJEAN ROYER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this sentencing guidelines departure case, the court held that a trial court cannot rely on facts underlying charges of which a defendant was acquitted to justify departing from sentencing guidelines, even when revoking community control. The court vacated the departure sentence and remanded for resentencing within the guidelines.
The court held that the departure reasons contravene Florida sentencing guidelines rules because they relate to charges of which the defendant was acquitted. A departure sentence cannot rely on factors relating to charges for which convictions have not been obtained.
[1] A trial court may not depart from recommended sentencing guidelines based on factors relating to the instant offenses for which convictions have not been obtained.
[2] An acquittal on criminal charges does not preclude a finding that a defendant violated community control.
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Join FLexlaw to unlock all legal intelligence“reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction or factors relating to the instant offenses for which convictions have not been obtained”
States the controlling legal standard from Florida Rule of Criminal Procedure 3.701(d)(11) that prohibits the trial court's departure reasons
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Join FLexlaw to unlock all legal intelligenceWhile on community control for three offenses, Royer was charged with new offenses related to a shooting. Before trial on the new charges, the trial c…
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COWART, Judge.
This is another sentencing guidelines departure case. While on community control for three offenses, the defendant was charged with new offenses relating to a shooting. Before trial on these new offenses, the trial court revoked the defendant’s community control and sentenced the defendant on the original offenses, departing from the recommended guidelines. The defendant was then tried on the new charges and acquitted. The written reasons given for the departure sentence were:
The Defendant constitutes a danger to the community in that he shot the victim almost killing him which constitutes the violation. He is very violent and the facts of his violation prove that out.
The defendant concedes that he may be adjudged guilty of violation of community control even though acquitted of charges on which the violation of community control is founded1 but contends that the reasons given for the departure are invalid under the sentencing guidelines because of the acquittal. We agree.
These reasons given for the departure relate to the charges of which the defendant was acquitted and contravene Florida Rule of Criminal Procedure 3.701(d)(ll) which provides that reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction or factors relating to the instant offenses for which convictions have not been obtained.2 See Brown v. State, 480 So. 2d 225 (Fla. 5th DCA 1985); Weaver v. State, 475 So. 2d 1365 (Fla. 2d DCA 1985); Fletcher v. State, 457 So. 2d 570 (Fla. 5th DCA 1984).
The departure sentence is vacated and the cause remanded for resentencing in accordance with the sentencing guidelines,
SENTENCE VACATED; CAUSE REMANDED FOR RESENTENCING.
UPCHURCH, J., and CAMPBELL, M., Associate Judge, concur. . See Horn v. State, 433 So. 2d 670 (Fla. 4th DCA 1983).
. This case illustrates an anomaly in the law at this time. If it is proper to rely on facts underlying criminal charges resulting in an acquittal to terminate probation or community control, it should be proper to rely on those same facts for a departure sentence. Conversely, if it is improper to rely on facts underlying criminal charges resulting in an acquittal to impose a departure sentence, it should be improper to rely on those same facts to terminate probation or community control. The legal propriety of relying on facts underlying criminal charges resulting in an acquittal as the basis for an adverse adjudication of the defendant’s legal rights on collateral matters, such as the imposition of a departure sentence, or termination of probation or community control, should be the same in either case.
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Cited By
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Eldridge v. State, 531 So. 2d 741 (Fla. 5th DCA 1988)…he prior or the subsequent, becomes the primary offense rather than to use the definition of primary offense in Rule 3.701 d.3. . See Horn v. State, 433 So. 2d 670 (Fla. 4th DCA 1983). . The anomaly has been observed, see note 2 to Royer v. State, 488 So. 2d 649 (Fla. Sth DCA 1986) and see the dissent to Tuthill v. State, 518 So. 2d 1300, 1303 (Fla. 3d DCA 1987). . See Leopard v. State, 491 So. 2d 1284 (Fla. 1st DCA 1986); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984) (capital felony not scored as addit…
Authorities Cited
- Dorion Fletcher v. State, 457 So. 2d 570 (Fla. 5th DCA 1984)
- Brown v. State, 480 So. 2d 225 (Fla. 5th DCA 1985)
- Horn v. State, 433 So. 2d 670 (Fla. 4th DCA 1983)
- Weaver v. State, 475 So. 2d 1365 (Fla. 2d DCA 1985)