EDWARD CUMMINGS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Cummings appealed his sentence for grand theft, arguing that the trial court's reasons for departing upward from the sentencing guidelines were insufficient. The court reversed and remanded for resentencing, finding that three of the four stated grounds for departure violated sentencing guidelines rules or were insufficiently supported.
The court held that one ground (extensive juvenile record) was valid, but the remaining three grounds were insufficient under sentencing guidelines rules. The prior felony incarceration ground was improper because it was tied to a prior conviction already included in the scoresheet calculation, and the dismissed cases and 'scofflaw' characterization violated rules prohibiting consideration of factors relating to arrests without conviction or convictions not obtained.
[1] A trial court may not depart from sentencing guidelines based on prior felony incarceration if that incarceration is tied to a prior conviction already included in the sc…
[2] A trial court may not consider dismissed cases as a basis for departing from sentencing guidelines, as this violates rules prohibiting consideration of factors relating t…
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Join FLexlaw to unlock all legal intelligence“extensive (sic) juvenile record; 2) prior felony incarceration; 3) number of cases dismissed as a condition of plea, (sic) amount (sic) to picture of a person who is a scofflaw.”
The trial judge's four stated reasons for departing upward from the sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceCummings negotiated a plea to grand theft and was sentenced beyond the recommended range under Florida's sentencing guidelines. The trial judge provid…
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ZEHMER, Judge.
Appellant, Edward Cummings, negotiated a plea to grand theft and was sentenced beyond the recommended range under the sentencing guidelines. He contends that the reasons for departure are insufficient. Once again we are required to reverse and remand for resentencing.
The following written reasons for departure were given by the trial judge:
1) extensive (sic) juvenile record; 2) prior felony incarceration; 3) number of cases dismissed as a condition of plea, (sic) amount (sic) to picture of a person who is a scofflaw. See transcript of Sentencing (sic) hearing to be forwarded.
The first ground is based upon several juvenile offenses, one of which occurred within the past three years and should have been, but was not, included on the sentencing guidelines scoresheet. There were, however, several other convictions beyond the three-year period which could not be included; therefore, we find no substantial reason to reject this ground for departure. Weems v. State, 469 So. 2d 128 (Fla.1985); rule 3.701(d)(5), Fla.R. Crim.P. We hold that the remaining grounds are insufficient. The reference to prior felony incarceration is so tied to the prior conviction included in calculating the scoresheet that it is improper. Patty v. State, 486 So. 2d 16 (Fla. 1st DCA 1986). The reference to the number of cases dismissed as a condition of the plea violates the requirement of the rule that no consideration be given to “factors relating to prior arrests without conviction” and “factors relating to the instant offenses for which convictions have not been obtained.” Rule 3.701(d)(ll), Fla.R.Crim.P. Characterization of the appellant as a “scofflaw” appears to be based on the facts recited in grounds one through three and adds nothing of substance, independent of those grounds, that would support departure.
The record containing nothing to convince us beyond a reasonable doubt that the trial judge would have given the same sentence irrespective of the impropriety of three of the four grounds stated, we must remand for resentencing.
REVERSED AND REMANDED.
SHIVERS and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988)…d first degree murder were nol pressed as part of the plea agreement, but the court found that Rule 3.701(d)(ll) did not preclude the trial court’s consideration of the circumstances giving rise to the dropped charges. However, in Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA 1986), the court held that reference to charges dismissed as a condition of the plea was precluded by the rule. See also Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986), in which the court held that danger to others caused by a hi…
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Berry v. State, 511 So. 2d 1075 (Fla. 1st DCA 1987)…t acts constituting offenses which were dropped as part of a plea agreement cannot be used to support a departure sentence. Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986); Baxter v. State, 488 So. 2d 647 (Fla. 5th DCA 1986); Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA 1986); Padgett v. State, 497 So. 2d 724 (Fla. 1st DCA 1986); McMillan v. State, 478 So. 2d 1195 (Fla. 4th DCA 1985); and Rease v. State, 485 So. 2d 5 (Fla. 1st DCA 1986). The next reason, the trial court’s belief that the appellant wo…
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Bailey v. State, 492 So. 2d 738 (Fla. 1st DCA 1986)…and dishonest behavior) rendering the defendant a continuing and serious threat to the community, Riggins v. State, 489 So. 2d 180 (Fla. 1st DCA 1986); Prior felony incarceration (tied to prior conviction factored in scoresheet), Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA 1986); The defendant has not demonstrated the ability to govern himself by the laws, Chaplin v. State, 488 So. 2d 555 (Fla. 1st DCA 1986); Defendant’s inability to conform his behavior to acceptable norms, Brooks v. State, 487 So. 2d…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Patty v. State, 486 So. 2d 16 (Fla. 1st DCA 1986)