ROBIN MONTGOMERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robin Montgomery appealed her departure sentence of five years' incarceration followed by four consecutive five-year periods of probation for worthless check crimes and probation violations. The Florida Fifth District Court of Appeal vacated the sentence and remanded for resentencing, finding that the trial court's stated reasons for departing from the sentencing guidelines were invalid or insufficiently clear and convincing.
The court held that the trial court's departure reasons were invalid or insufficiently supported. The probation officer's recommendation cannot justify departure as that determination belongs exclusively to the court; the lack of apparent justification for the crimes is insufficient; the need for punishment to break a chain of conduct cannot justify departure when guidelines sentences could provide incarceration; the complexity of the scheme was already factored into the guidelines; and the court failed to clearly articulate that the timing of offenses justified departure or carry its burden of proving it would have departed absent the invalid reasons.
[1] A probation officer's recommendation for departure from a recommended guideline sentence is an invalid reason for the court to depart.
[2] The commission of an offense without legal or moral justification is an insufficient reason for departure from a recommended guideline sentence.
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“The determination of whether or not to depart from a recommended guideline sentence belongs exclusively to the court.”
Establishes that a probation officer's recommendation cannot justify departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceIn 1983, Montgomery was placed on probation for depositing worthless checks with intent to defraud. In 1984, she was charged with violating her probat…
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ORFINGER, Judge.
The defendant appeals from a departure sentence of five years’ incarceration followed by four consecutive five year periods of probation. We vacate the sentence and remand for resentencing.
In 1983 appellant was placed on probation for the offense of depositing a worthless check with intent to defraud. In 1984 she was charged with violating the conditions of her probation by issuing additional worthless checks. After pleading guilty to violating her probation, she was sentenced for the 1983 crime as well as for the additional check crimes which she had subsequently committed.
In departing from the recommended guidelines sentence of community control or 12 to 30 months’ incarceration, the trial court gave the following written reasons:
1. Defendant on probation, as well as on release pending resolution of various cases and continued her criminal activities unabated by the criminal justice system and without regard for same.
2) Complicated scheme as shown by the informations continuously over a period of 2 to 3 years.
3) The Court must enterject [sic] some punishment to break this “chain of conduct” but must attempt to collect restitution.
4) No apparent reason or need for the huge amounts of money taken, no drug or alcohol problems only Jai Alai and Dog Track.
5) Probation Officer recommended departure.
Taking these reasons in reverse order, reason number 5 is invalid. See Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986). The determination of whether or not to depart from a recommended guideline sentence belongs exclusively to the court. Carnegie v. State, 473 So. 2d 782 (Fla. 2d DCA 1985). Reason number 4 is tantamount to the statement that there is no legal or moral justification for the commission of the offense, and that has been held to be an insufficient reason for departure. Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986).
Reason number 3 cannot be considered as clear and convincing because a sentence within the guidelines could have provided for punishment by incarceration, and the court also had it within its power to impose a period of probation and to consider requiring restitution as a condition of probation. Although not stated that way, if the court intended to say that the proposed sentence was not severe enough for the crimes which defendant had committed, this too has been held to be an insufficient reason for departure. Brown v. State, 487 So. 2d 1158 (Fla. 5th DCA 1986); Wilson v. State, supra.
Reason number 2 appears to relate either to the other crimes which defendant had committed, a matter already factored into the guidelines sentence and thus an improper basis for departure, Hendrix v. State, 475 So. 2d 1218 (Fla.1985), or to other charges against defendant for which convictions had not been obtained, a prohibited basis for departure. Fla.R. Crim.P. 3.701(d)(ll). Similarly, reason number 1 addresses the fact that she was on probation and that she committed other crimes, both of which are already factored into the guidelines sentence. The fact that defendant was on probation when she committed the additional offenses and the additional offenses themselves resulted in points on the scoresheet. Thus, they did not also qualify for departure. Hendrix, supra. The State contends that within reason number 1 is included the fact that the defendant committed the later offenses while she was awaiting sentencing and close to the time of her release. While the timing of an offense has been held to be a valid reason for departure, White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986); Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985), it is not at all clear that reason number 1 is based on this premise. Even if it was, the State has not carried its burden of demonstrating beyond a reasonable doubt that the court would have departed from the recommended sentence absent the invalid reasons. Albritton v. State, 476 So. 2d 158 (Fla.1985). We therefore vacate the sentence and remand the case for re-sentencing.
SENTENCE VACATED, REMANDED.
COBB, C.J., and DAUKSCH, J., concur.
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Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988)…he guideline calculation. State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986). The second reason is that the state troopers who investigated this incident would not recommend prison. This is not a valid reason for departure. See Montgomery v. State, 489 So. 2d 1225 (Fla. 5th DCA 1986) (recommendation of a probation officer was not a valid reason for a departure sentence). The third reason, that the factual information is questionable at best, suggests that the trial court may have disagreed with the conclusion…
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J.M. v. State, 677 So. 2d 890 (Fla. 3d DCA 1996)…d v. State, 531 So. 2d 1004, 1007 (Fla. 5th DCA 1988); Cahill v. State, 505 So. 2d 1113, 1114 (Fla. 2d DCA 1987); State v. Eason, 501 So. 2d 696 (Fla. 2d DCA 1987); State v. D’Alexander, 496 So. 2d 1007, 1009 (Fla. 2d DCA 1986); Montgomery v. State, 489 So. 2d 1225, 1226 (Fla. 5th DCA 1986); Tompkins v. State, 483 So. 2d 115, 116 (Fla. 2d DCA 1986). The sentencing decision is ultimately that of the court, not the probation officer, and cannot properly be delegated to the probation officer. See Montgomery v. S…
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State v. D'Alexander, 496 So. 2d 1007 (Fla. 2d DCA 1986)…es not show, beyond a reasonable doubt, that a downward departure is necessary. The court also erred in improperly relying upon D’Alexander’s probation officer’s recommendation of a drug rehabilitation program. As was stated in Montgomery v. State, 489 So. 2d 1225 (Fla. 2d DCA 1986), a probation officer’s recommendation is an invalid reason for departure. We affirm the adjudication of guilt, but reverse and set aside the sentence imposed. We remand the matter to the trial court and order that appellee be sen…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986)
- Carnegie v. State, 473 So. 2d 782 (Fla. 2d DCA 1985)
- Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985)
- White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986)
- Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986)
- Wilton Oliver Brown v. State, 487 So. 2d 1158 (Fla. 5th DCA 1986)