JAY ROBINSON YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jay Robinson Young appeals his sentence for multiple felonies, challenging the trial court's departure above the recommended sentencing guidelines. The court reverses, finding that while some departure reasons were valid, one impermissible reason (incorrigibility/containment) infected the sentencing and requires resentencing.
The court held that three of the four departure reasons were valid (prior criminal history, inadequacy of prior sentences, and proportionality), but the fourth reason (incorrigibility and containment/incapacitation) was invalid. Because an impermissible reason influenced the sentence and the state cannot show the sentence would be the same without it, the sentence must be reversed and the case remanded for resentencing.
[1] A trial court's departure from recommended sentencing guidelines is invalid if based on impermissible reasons, even if other permissible reasons exist.
[2] A defendant's prior criminal history, including juvenile offenses and periods of incarceration, can constitute a valid reason for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“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 show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence.”
Establishes the controlling legal standard for sentencing reversals when mixed valid and invalid reasons support a departure.
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Join FLexlaw to unlock all legal intelligenceYoung, age 23, has an extensive criminal history beginning with a juvenile arrest in 1975. He was committed as a juvenile in 1976, sentenced to 5 year…
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PER CURIAM.
Defendant appeals from his sentence for convictions of burglary, grand theft, obstructing an officer, fleeing to elude capture and driving without a valid driver’s license.
The sentence exceeded the recommended sentence under the sentencing guidelines. Defendant contends that the trial court did not have valid reasons to depart from those recommended sentences. We agree with a part of defendant’s argument and reverse.
The trial court gave as his reasons for departure that:
1. The defendant is 23 years old, and was first arrested in 1975 as a juvenile for a matter for which he was convicted. He was committed in January of 1976, then committed again in June, 1976. As an adult, he was then sentenced to 5 years in October, 1977; again for an offense occurring in October, 1980, he was sentenced in 1981 to 3 years, which same act constituted a violation of his parole; again was convicted of a crime that occurred in December, 1983. He then managed to live an upright life until June, 1984. The court will not consider the other matters which are pending. Essentially, he has not remained free without committing a crime for any significant length of time. Examination of the file reveals that the apparent crime free periods were while he was incarcerated.
2. He has previously been sentenced to 5 years, and 3 years without any significant impact on his conduct, and a longer sentence in the recommended guideline sentence is required to get his attention.
3. It would appear that the defendant is incorrigible, and it is unlikely anything will get his attention; the public has a right to be protected from this conduct. A valid sentencing philosphy [sic] is that of containment, that is to prevent the defendant from having further contact with society and to protect them from him.
4.Since earlier punishments were in excess of the guidelines, any theory of punishment in sentence would indicate that the punishment should be greater for a continuing and subsequent infraction.
We conclude that reasons 1, 2 and 4 which are supported by the record, are valid reasons for the 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 show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence. Albritton v. State, 476 So. 2d 158 (Fla.1985).
We therefore reverse the sentence and remand for resentencing.
DANAHY, A.C.J., and LEHAN and SANDERLIN, JJ., concur.
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Coleman v. State, 515 So. 2d 313 (Fla. 2d DCA 1987)…te, 455 So. 2d 551, 552 (Fla. 1st DCA 1984), affirmed, 476 So. 2d 161 (Fla. 1985). In addition, speculating on possible future violence or criminal conduct is impermissible. Broomhead v. State, 497 So. 2d 734, 735 (Fla. 2d DCA 1986); Young v. State, 489 So. 2d 199, 200 (Fla. 2d DCA 1986). Reason # 2 is valid. Jakubowski v. State, 494 So. 2d 277, 279 (Fla. 2d DCA 1986). Reason # 3 is a restatement of reason # 2 and therefore valid. Reason # 4 is a conclusion by the trial court; and although it is not a reaso…
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Berry v. State, 511 So. 2d 1075 (Fla. 1st DCA 1987)…rd is already scored in the sentencing guidelines scoresheet and thus cannot support departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Further, it has been held that protection of the public is an invalid reason for departure. Young v. State, 489 So. 2d 199 (Fla. 2d DCA 1986); Nichols v. State, 504 So. 2d 414 (Fla. 1st DCA 1987) (protection of community invalid reason); and Williams v. State, 492 So. 2d 1308, 1309 (Fla.1986) (“[a] trial judge [*1077] may not substitute his own opinion for that of the S…
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Mitchell v. State, 513 So. 2d 1122 (Fla. 4th DCA 1987)…1) It was necessary to protect the public from further criminal activity by the appellant; (2) Appellant was found as an habitual offender; and (3) Appellant was on probation of the time of murder. Reasons 1 and 2 are invalid. See Young v. State, 489 So. 2d 199 (Fla. 2d DCA 1986); Whitehead v. State, 498 So. 2d 863 (Fla.1986). Reason 3 is also invalid. See Ashley v. State, 510 So. 2d 970 (Fla. 4th DCA 1987); Atwaters v. State, 495 So. 2d 1219 (Fla. 1st DCA 1986). Accordingly, we reverse and remand for rese…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984)
- Middleton v. State, 489 So. 2d 201 (Fla. 2d DCA 1986)
- McCRAY v. State, 488 So. 2d 912 (Fla. 2d DCA 1986)