EUGENE MCCRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial judge may not consider a defendant's prior convictions as a reason for departure from sentencing guidelines if those convictions have already been factored into the scoresheet.
[1] A trial judge may not consider a defendant's prior convictions as a reason for departure from sentencing guidelines when those convictions have already been factored into…
[2] Sentencing guidelines departures are inappropriate when the reasons for departure are based solely on a defendant's prior criminal history that has been accounted for in…
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Join FLexlaw to unlock all legal intelligenceThe defendant was sentenced to prison terms exceeding the recommended nonstate prison sanction under the sentencing guidelines. The trial judge cited …
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DANAHY, Acting Chief Judge.
The defendant appeals his sentences for possession of cocaine and cannabis, both of which were departures from the sentencing guidelines recommended range. The recommended range was “any nonstate prison sanction.” The trial judge sentenced the defendant to five years imprisonment on the possession of cocaine charge and one year imprisonment on the possession of cannabis charge, to be served concurrently. On the bottom of the scoresheet, under “reasons for departure,” the trial judge wrote the following:
Twenty-six criminal convictions since 1971. Yet the guidelines recommend nonstate prison sanction. Clearly the guidelines do not apply to this individual and are inappropriate. The defendant is a chronic offender and the public can be protected only by his incarceration for an extended period.
The trial judge’s reasons for departure in this case are remarkably similar to the departure reasons disapproved by the Supreme Court of Florida in Hendrix v. State, 475 So. 2d 1218 (Fla.1985) (Adkins, J., dissenting). The trial judge in Hendrix said:
The defendant, TERRY BECKETT HENDRIX, is to be sentenced on grand theft. The defendant had a prior record dating back to 1971 consisting of possession of controlled substances, shoplifting, driving under the influence, and disorderly intoxication. He has demonstrated complete disregard for the laws of society, and a sentence to the county jail would simply not.be sufficient deterrent or punishment for this individual and, therefore, this court finds and determines that it is necessary to go outside the guidelines and impose a sentence accordingly. In Hendrix the Court held that a trial judge may not consider a defendant’s prior convictions as a reason for departure from the guidelines, where those convictions have been factored into the scoresheet. Following Hendrix, as we must, we reverse and remand for imposition of sentence according to the guidelines recommended range.
Reversed and remanded for resentencing.
LEHAN and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986)…t is based on the defendant’s prior record and involves factors already taken into account in calculating the guidelines sentence. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). See also Williams v. State, 492 So. 2d 1308 (Fla.1986); McCray v. State, 488 So. 2d 912 (Fla. 2d DCA 1986). The court's third reason for departure concerning the potential danger to victims, number of victims and use of a dangerous weapon is invalid because it also involves factors already taken into account in calculating the guideli…
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Young v. State, 489 So. 2d 199 (Fla. 2d DCA 1986)…departure. As to reason 1, see Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984). As to reasons 2 and 4, see Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984). However, as to reason 3, this was an invalid reason for departure. See McCray v. State, 488 So. 2d 912 (Fla. 2d DCA 1986); Middleton v. State, 489 So. 2d 201 (Fla. 2d DCA 1986). When a departure is based on both permissible and impermissible reasons, the sentence should be reversed and the case remanded for resentencing unless the state is able to s…
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Middleton v. State, 489 So. 2d 201 (Fla. 2d DCA 1986)…Enough Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985). Williams v. State, 484 So. 2d 71 (Fla. 1st DCA 1986). Young v. State, 488 So. 2d 114 (Fla. 1st DCA 1986). Fuller v. State, 488 So. 2d 594 (Fla. 2d DCA 1986). Contra: McCray v. State, 488 So. 2d 912 (Fla. 2d DCA 1986). Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986). Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986). Our conclusion is that this case is controlled by Hendrix. Here, as decided in Hendrix, a departure may not be based u…
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- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)