JOHN ROBERT KIRK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kirk appeals his sentence for resisting an officer with violence, challenging the trial court's departure above guideline sentencing. The appellate court finds two of the three stated reasons for departure legally invalid and vacates the sentence for resentencing.
The court held that two of the three stated reasons for departure were invalid. Danger to law enforcement officers is not a valid departure reason unless it exceeds that ordinarily encountered in such arrests and is supported by credible facts proven beyond reasonable doubt. A reason based on inability to live in a non-structured environment without violating the law is invalid when factually based on prior criminal convictions.
[1] A trial court's written reason for departing from recommended sentencing guidelines must be supported by facts proven beyond a reasonable doubt.
[2] Danger presented to a law enforcement officer is a valid reason for sentencing departure only when it is greater than that ordinarily encountered in the commission of the…
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Join FLexlaw to unlock all legal intelligence“Danger presented to a victim is a valid reason for departure only when it is greater than that ordinarily encountered by a victim of that crime, Harris v. State, 482 So. 2d 548 (Fla. 4th DCA 1986), and the danger must be supported by facts which are credible and proven beyond a reasonable doubt.”
Establishes the standard for using danger as a sentencing departure reason
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKirk was arrested and pled guilty to resisting an officer with violence under Florida Statutes section 843.01. The trial court imposed a sentence exce…
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DAUKSCH, Judge.
Appellant Kirk appeals his sentence imposed in excess of the recommended guideline sentence. Kirk was arrested and pled guilty to resisting an officer with violence in violation of section 843.01, Florida Statutes (1983).
The trial court set forth three written reasons for departure. The second reason, which stated “taking into consideration the danger presented to the law enforcement officers,” is not a valid reason. Danger presented to a victim is a valid reason for departure only when it is greater than that ordinarily encountered by a victim of that crime, Harris v. State, 482 So. 2d 548 (Fla. 4th DCA 1986), and the danger must be supported by facts which are credible and proven beyond a reasonable doubt. See State v. Mischler, 488 So. 2d 523, (Fla.1986).
The record in this case does not indicate that the police officers were in any greater danger than normally encountered when arresting a disorderly drunk. The third reason for departure stated that appellant was unable to live in a non-structured environment without violating the laws of society and that the protection of society required that he be institutionalized. This reason has been found to be invalid because it is factually based on prior criminal convictions. Tillman v. State, 482 So. 2d 603 (Fla. 5th DCA 1986); Fowler v. State, 482 So. 2d 602 (Fla. 5th DCA 1986); Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986); Pilgrim v. State, 480 So. 2d 688, 689 (Fla. 5th DCA 1985).
Under Albritton v. State, 476 So. 2d 158 (Fla.1985), the state has not shown beyond a reasonable doubt that absent these two invalid reasons the sentence would have been the same.
Therefore the sentence is vacated and remanded to the trial court for resentencing in accordance with this opinion.
VACATED and REMANDED.
UPCHURCH and SHARP, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Riley Bernard Smith v. State, 495 So. 2d 876 (Fla. 5th DCA 1986)…ns for departing from the presumptive guideline sentence given by the lower court in this case presents a valid basis for departure. See Scurry v. State, 489 So. 2d 25 (Fla.1986); Dixon v. State, 492 So. 2d 410 (Fla. 5th DCA 1986) and Kirk v. State, 490 So. 2d 176 (Fla. 5th DCA 1986). Thus, this case is remanded for resentencing within the presumptive guideline range. REMANDED. ORFINGER, COBB and COWART, JJ., concur.…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Cunningham v. State, 481 So. 2d 72 (Fla. 4th DCA 1985)
- Harris v. State, 482 So. 2d 548 (Fla. 4th DCA 1986)
- Bertley S. Pilgrim v. State, 480 So. 2d 688 (Fla. 5th DCA 1985)
- Tillman v. State, 482 So. 2d 603 (Fla. 5th DCA 1986)
- Hardage v. State OF Ga., 482 So. 2d 602 (Fla. 1st DCA 1986)
- Fowler v. State, 482 So. 2d 602 (Fla. 5th DCA 1986)