VERNON A. REID, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Reid appeals his sentencing for burglary/assault and attempted sexual battery, challenging the trial court's departure from sentencing guidelines. The court reverses and remands for resentencing because the trial court relied on invalid reasons for departure that either duplicated factors already in the guidelines scoresheet or were legally insufficient.
The court affirmed that current guidelines were properly applied, but reversed on the departure reasons. Of the six reasons provided, only reason 6 (breaking into victim's home) was partially invalid as an element of the offense; reasons 1, 2, 3, 4, and 5 were either invalid, duplicative of scoresheet factors, or insufficient as legal bases for departure. The case was remanded for resentencing within the guidelines range.
[1] Sentencing guidelines in effect at the time of resentencing, rather than the time of the original sentencing, are correctly applied.
[2] A reason for departure from sentencing guidelines is invalid if it relies on threats made by the defendant without specifying their seriousness or impact on the victim.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As to reason 2, serious injury inflicted upon the victim, and reason 3, defendant's prior criminal record, those aspects had already been factored into the guidelines scoresheet.”
Establishes that factors already in the scoresheet cannot serve as independent departure reasons
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Join FLexlaw to unlock all legal intelligenceReid was convicted of burglary/assault and attempted sexual battery. After two prior appeals, he was resentenced to fifty years for burglary/assault a…
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LEHAN, Judge.
In this guidelines case involving a departure from the recommended sentence, we reverse and remand for resentencing.
Defendant was convicted of burglary/assault and attempted sexual battery. At his resentencing following our remand in an earlier appeal, Reid v. State, 460 So. 2d 921 (Fla. 2d DCA 1984), which had been preceded by a still earlier appeal, Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983), he was sentenced to fifty years for the burglary/assault conviction and fifteen years for the attempted sexual battery conviction. This was a departure from the recommended guidelines sentence of nine to twelve years. On appeal defendant contends that (a) the trial court erred in using the sentencing guidelines in effect at the time the defendant was resentenced, rather than those in effect at the time of his original sentencing; (b) that the trial court erred in using invalid reasons for departure from the recommended guidelines sentence; and (c) that the extent of the departure was excessive.
As to (a), we conclude that the trial court correctly used the guidelines in effect at the time of the resentencing. See State v. Jackson, 478 So. 2d 1054 (Fla.1985).
As to (b), the trial court’s reasons for departure were
1. Threats made by defendant to kill victim.
2. Serious injury inflicted upon victim by defendant.
3. Prior criminal record of defendant consisting of the robbery.
4. Particularly violent nature of these offenses.
5. In this court’s opinion, defendant is a danger to society.
6. The fact that defendant broke into victim’s home, she being alone, threatened her and inflicted injuries.
We conclude that reason 1 involving threats was invalid. There is no indication as to what, or how serious, the threats were. Also, there is no indication in the trial court’s reasons that anything defendant said affected the victim. As to reason 2, serious injury inflicted upon the victim, and reason 3, defendant’s prior criminal record, those aspects had already been factored into the guidelines scoresheet. See Mora v. State, 484 So. 2d 621 (Fla. 2d DCA 1985). As to reason 4, the particularly violent nature of the offense, the violence inherent in the offenses had also already been factored into the scoresheet and no unusual facts in this regard were set forth by the trial judge. See Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986). As to reason 5, danger to society, that reason, standing alone, is an invalid basis for departure. See Lorenzo v. State, 483 So. 2d 790 (Fla. 4th DCA 1986); Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986). As to reason 6, the breaking into victim’s home, that portion of the reason dependent upon the unlawful entry into the victim’s home was an element of one of the offenses for which defendant was convicted and was therefore an invalid reason for departure. See Irving v. State, 484 So. 2d 78 (Fla. 2d DCA 1986). The threat and the injuries were contained in reasons 1 and 2 which are referred to above. The mere fact that the victim was alone is not a valid reason for departure. Cf. Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986) (that the sexual battery was committed in the presence of the victim’s son and will have a traumatic effect on the victim and the son can be a valid reason for departure).
Contention (c), therefore, has become moot and we remand for resentencing within the guidelines presumptive range.
DANAHY, A.C.J., and FRANK, J., concur.
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Reed v. State, 192 So. 3d 641 (Fla. 2d DCA 2016)…n 775.082(10)’s passage, a court’s upward departure based on an offender’s danger to the public alone was impermissible. See Keys v. State, 500 So. 2d 134, 136 (Fla.1986); see also Ready v. State, 657 So. 2d 53, 53 (Fla. 2d DCA 1995); Reid v. State, 488 So. 2d 913, 915 (Fla. 2d DCA 1986); Angle v. State, 604 So. 2d 34, 35 (Fla. 1st DCA 1992); Odom v. State, 561 So. 2d 443, 445 (Fla. 5th DCA 1990); Morgan v. State, 528 So. 2d 991, 992 (Fla. 4th DCA 1988); Mendenhall v. State, 511 So. 2d 342, 342 (Fla. 5th DCA…
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Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987)…n for departure was that Alexander was a drug dealer. This fact is an inherent component of one of the charges, i.e., possession of cocaine with intent to sell, and thus cannot be a basis for departure. See Fla.R.Crim.P. 3.701(d)(11); Reid v. State, 488 So. 2d 913 (Fla. 2d DCA 1986). The third reason for departure was that Alexander was a habitual offender. However, he was never formally adjudicated by the trial judge to be a habitual offender. Because the judge used the phrase “habitual offender” in his wri…
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Weathers v. State, 508 So. 2d 1332 (Fla. 2d DCA 1987)…, “threat to society” and “disregard for criminal justice system” are invalid reasons for departure under the facts of this case. See Williams v. State, 492 So. 2d 1308 (Fla.1986); Hendsbee v. State, 497 So. 2d 718 (Fla. 2d DCA 1986); Reid v. State, 488 So. 2d 913 (Fla. 2d DCA 1986); Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986). Cf. Santana v. State, 507 So. 2d 680 (Fla. 2d DCA 1987) (“lack of respect for the law” valid reason for departure where defendant did not appear for disposition of delive…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Cunningham v. State, 481 So. 2d 72 (Fla. 4th DCA 1985)
- Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986)
- Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986)
- Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983)
- Lorenzo v. State, 483 So. 2d 790 (Fla. 4th DCA 1986)
- Irving v. State, 484 So. 2d 78 (Fla. 2d DCA 1986)
- Mora v. State, 484 So. 2d 621 (Fla. 2d DCA 1986)
- Reid v. State, 460 So. 2d 921 (Fla. 2d DCA 1984)