KENNETH HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while one of the trial court's reasons for departing from sentencing guidelines was invalid, the remaining reasons were sufficient to support the departure sentence.
Appellant argued the trial court erred in departing from sentencing guidelines. The trial court cited five reasons for departure, including the appell…
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SHIVERS, Judge.
Appellant argues that the trial court erred in using impermissible reasons to depart from the sentencing guidelines. We agree with appellant that one out of the court’s five reasons is invalid. We nonetheless affirm the departure on the basis of Albritton v. State, 476 So. 2d 158 (Fla.1985) and State v. Young, 476 So. 2d 161 (Fla.1985).
As its second reason for departure from the guidelines, the trial court stated “[appellant’s] prior history of criminal behavior ... indicates that rehabilitation is not possible. I find that he has served detentions and prison terms without any rehabilitative results or any attitude adjustment on his part. The protection of society requires restraint.” In so stating, the court seems to have been expressing a decision between a recommended sanction involving rehabilitation and a departure sentence involving incarceration or restraint. Since both the recommended sentence and the departure sentence involve restraint1 and neither involve rehabilitation, we find this reason to be unclear and invalid. See Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985) and Brooks v. State, 456 So. 2d 1305 (Fla. 1st DCA 1984).
We find the remaining reasons to be valid. Since it appears that the absence of the one invalid reason would not have affected the departure sentence, we affirm. Albritton v. State, supra, and State v. Young, supra.
BOOTH, C.J., and WIGGINTON, J., concur. . The recommended guidelines sentence in this case is seven-nine years. The trial court imposed a departure sentence of concurrent thirty-year sentences for three counts of armed robbery and concurrent fifteen-year sentences for three counts of unlawful display of a firearm during the commission of a crime.
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Harris v. State, 520 So. 2d 639 (Fla. 1st DCA 1988)…ny. At that time, the Florida Supreme Court had held in Gibson v. State, 452 So. 2d 553 (Fla.1984), that one could be convicted of both crimes when based on the same criminal act. Appellant’s convictions were affirmed by this court. Harris v. State, 489 So. 2d 838 (Fla. 1st DCA 1986). Appellant filed the instant motion for post-conviction relief, contending in part that it was error to convict him of both crimes. Subsequent to the trial court’s denial of relief and the filing of this appeal, the supreme court…
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Bailey v. State, 492 So. 2d 738 (Fla. 1st DCA 1986)…fendant had previously been sentenced to prison and had not been rehabilitated, Fain v. State, 488 So. 2d 169 (Fla. 1st DCA 1986); [*741] Prior history indicates rehabilitation not possible, protection of society requires restraint, Harris v. State, 489 So. 2d 838 (Fla. 1st DCA 1986); A pattern of conduct (prior history of theft 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 (ti…
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Roache v. State, 547 So. 2d 706 (Fla. 1st DCA 1989)…ern of criminal activity as a reason for departure. Cox v. State, 508 So. 2d 1318 (Fla. 1st DCA 1987); Keys v. State, 500 So. 2d 134 (Fla.1986). The court’s second reason for departure is also invalid under this court’s holding in Harris v. State, 489 So. 2d 838 (Fla. 1st DCA 1986). As in Harris, the trial court in the instant case seems to have been expressing a decision between a recommended sentence involving rehabilitation only and a departure sentence involving restraint for the maximum statutory term.…
Previewing 3 of 5 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)
- State v. Young, 476 So. 2d 161 (Fla. 1985)
- Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985)
- Brooks v. State, 456 So. 2d 1305 (Fla. 1st DCA 1984)