CLARENCE BROOKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brooks appealed his sentence imposed above the Florida sentencing guidelines, arguing the trial court lacked valid reasons for departure. The Fifth District Court of Appeal reversed and remanded, finding all three stated reasons for departure legally invalid and requiring resentencing within the guideline range.
The trial court's departure was invalid because none of its three stated reasons—the timing of the offense, insufficiency of the guideline sentence to punish, and gain time provisions—were legally sufficient grounds for departure. The imposition of costs against an indigent defendant without notice and opportunity to object also violated established procedure.
[1] A trial court may not impose a sentence in excess of sentencing guidelines based on the timing of offenses without competent evidence to support that finding.
[2] The insufficiency of a guideline sentence to punish a defendant is an invalid reason for departing from sentencing guidelines.
Previewing 2 of 4 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 recommended prison term of four and a half years is insufficient to get this individual's attention. For the protection of society as well as for the welfare of this defendant, he should be confined for a period of at least five years which under the present system of early release requires a sentence of eight years”
The trial court's statement of reasons for departing from sentencing guidelines, illustrating the invalid reasoning that insufficiency of the guideline sentence to punish is not a valid basis for departure.
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Join FLexlaw to unlock all legal intelligenceBrooks was arrested for burglary of a structure on April 12, 1983. While awaiting sentencing on that charge, he committed two additional felony burgla…
The full statement of facts, procedural history, and disposition for this case are member content.
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COBB, Chief Judge.
On appeal, Brooks contends that the trial court erred in imposing a sentence in excess of the sentencing guidelines, and in imposing costs pursuant to sections 27.56, 943.25 and 960.20, Florida Statutes (1983). We agree and reverse.
The trial court’s reasons for departure were stated as follows:
Though the guidelines take into consideration the defendant’s past criminal record, it does not consider the time sequence of the same which is as follows: On April 12, 1983, he was arrested for burglary of a structure. He was released on his own recognizance and after entering a plea on that charge, and while awaiting sentencing, he committed two other felony offenses involving burglaries. For the first burglary he received four years probation, for the second he received two years community control, and for the third he received two years imprisonment on August 31, 1984. With jail credit and gain time he was released on January 11, 1985, just nine days before committing the burglary of a dwelling involved in this case. These facts clearly convince the undersigned that the recommended prison term of four and a half years is insufficient to get this individual’s attention. For the protection of society as well as for the welfare of this defendant, he should be confined for a period of at least five years which under the present system of early release requires a sentence of eight years.
The court thus enunciated three reasons for departing from the guidelines: (1) the timing of the offense, (2) the insufficiency of the guidelines to punish, and (3) that gain time provisions would reduce the sentence.
As to the first reason given, although the timing of an offense has been upheld as a valid reason for departure,1 there is no competent evidence in the record to support this finding. During the sentencing hearing there was a great deal of confusion over the prior criminal history of Brooks. Brooks claimed that most of his prior convictions were obtained before his sentencing on the April 12, 1983 offense. Brooks also claimed that he had never been put on probation and was therefore not under legal constraint at the time of committing the present offense. The burden was thus put upon the state to present competent corroborating evidence. This was not done. See Eutsey v. State, 383 So. 2d 219 (Fla.1980); Morris v. State, 483 So. 2d 525 (Fla. 5th DCA 1986); Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985).
The second and third reasons for departure are also invalid. It has been repeatedly held that the insufficiency of a guideline sentence to punish the wrongdoer is an invalid reason for departure. See Hendrix v. State, 475 So. 2d 1218 (Fla. 1985); Clark v. State, 481 So. 2d 994 (Fla. 5th DCA 1986). Additionally, the possibility of gain time was a factor included in computing the sentencing guidelines. See Fla.R.Crim.P. 3.701(b)(5). It is impermissible to base a departure sentence upon a reason already factored into the guidelines. See Hendrix, supra.
As all three of the reasons given for departure are invalid, this case is remanded with instructions to sentence Brooks within the guideline range.
The lower court also erred in imposing costs under sections 27.56, 943.25 and 960.20, Florida Statutes (1983), since Brooks is an indigent and was not provided with notice and an opportunity to object. See Jenkins v. State, 444 So. 2d 947 (Fla. 1984). These costs are therefore stricken without prejudice to the state to tax them in accordance with the procedure outlined in Jenkins. Id. at 950. See also Quince v. State, 475 So. 2d 916 (Fla. 4th DCA 1985).
REVERSED and REMANDED.
ORFINGER and SHARP, JJ., concur. . See White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984); Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984).
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Citator
Cited By (15 total)
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Outar v. State, 508 So. 2d 1311 (Fla. 5th DCA 1987)…So. 2d 661 (Fla. 5th DCA 1986); Maxwell v. State, 492 So. 2d 841 (Fla. 5th DCA 1986); Williams v. State, 492 So. 2d 784 (Fla. 5th DCA 1986); Fletcher v. State, 491 So. 2d 354 (Fla. 5th DCA), review denied, 500 So. 2d 545 (Fla.1986); Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986). . § 27.3455, Fla.Stat. (1985); Harris v. State, 507 So. 2d 1133 (Fla. 5th DCA 1987); Hardy v. State, 503 So. 2d 453 (Fla. 5th DCA 1986); Chance v. State, 498 So. 2d 1064 (Fla. 5th DCA 1986); Butler v. State, 498 So. 2d 611 (Fla…
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Thomas v. State, 512 So. 2d 1099 (Fla. 5th DCA 1987)…med, 509 So. 2d 924 (Fla.1987); Maxwell v. State, 492 So. 2d 841 (Fla. 5th DCA 1986); Williams v. State, 492 So. 2d 784 (Fla. 5th DCA 1986); Fletcher v. State, 491 So. 2d 354 (Fla. 5th DCA), review denied, 500 So. 2d 545 (Fla.1986); Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986). . See Jenkins v. State, 444 So. 2d 947 (Fla.1984); Delifus v. State, 507 So. 2d 753 (Fla. 5th DCA 1987); Butler v. State, 498 So. 2d 611 (Fla. 5th DCA 1986); Gaffney v. State, 497 So. 2d 1292 (Fla. 5th DCA 1986), review denied,…
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Bruton v. State, 510 So. 2d 1243 (Fla. 1st DCA 1987)…le is factored into the guidelines and as such is an impermissible ground for departure. Williams v. State, 493 So. 2d 48 (Fla. 2d DCA 1986). Neither is it proper to consider the possible effect of gain time on the sentence imposed. Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986). Finally, the reasons cannot be supported on the basis of the timing of the offenses relative to his earlier release on parole. The current offenses were committed approximately twenty-two months after his release on parole. Comp…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984)
- Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985)
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986)
- Morris v. State, 483 So. 2d 525 (Fla. 5th DCA 1986)
- Elvis Nathaniel Clark v. State, 481 So. 2d 994 (Fla. 5th DCA 1986)
- Quince v. State, 475 So. 2d 916 (Fla. 4th DCA 1985)