DOUGLAS GRAY VICKERS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant appealed his guidelines departure sentence for probation violation and related crimes. The trial court departed from the recommended range by imposing 4.5 years instead of community control or 12-30 months, citing the defendant's untreated drug problem. The appellate court vacated and remanded, holding that a defendant's need for drug treatment is insufficient to justify an upward departure beyond the one-cell increase automatically permitted for probation revocation.
The court held that a defendant's drug problem and need for medical treatment do not constitute clear and convincing reasons for an upward departure beyond the one-cell increase automatically permitted upon probation revocation. The defendant's need for treatment does not logically correlate with extended imprisonment and cannot justify departure.
[1] A trial court may increase a presumptive sentence by one cell upon revocation of probation without stating reasons for departure.
[2] A defendant's drug problem, without more, is an insufficient reason for an upward departure 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“there is no logical correlation between appellant's need for medical treatment and an extended term of imprisonment in the state correctional system”
Establishes the principle that a defendant's drug problem and need for treatment cannot justify upward sentencing departure
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Join FLexlaw to unlock all legal intelligenceDefendant was on probation when he committed several other crimes. He accepted a negotiated guilty plea to the probation violation and certain later c…
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ORFINGER, Judge.
This is another appeal from a guidelines departure sentence.
Defendant was on probation when he committed several other crimes. After accepting defendant’s negotiated guilty plea to the probation violation as well as to certain of the later charges, the trial court departed from the recommended sentence of community control or 12-30 months’ incarceration and sentenced appellant to concurrent sentences of 4V2 years, a two cell increase. The written reason for departure was:
Violation of Probation; defendant’s drug problem which hasn’t been treated and time provided in 2nd cell is not sufficient for treatment.
Because of the revocation of probation, the trial court could have increased the presumptive sentence by one cell without stating reasons for departure, Fla.R. Crim.P. 3.701 d.14, but for an increase beyond that, other clear and convincing reasons are required. Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). We have previously held that a defendant’s drug problem is an insufficient reason for an upward departure because “there is no logical correlation between appellant’s need for medical treatment and an extended term of imprisonment in the state correctional system.” Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985). That principle applies here.
A one cell increase, permitted because of revocation of probation, would place the recommended sentence at 2½ to 3½ years, long enough for defendant to complete the course of treatment to which the judge alluded at the sentencing hearing and in the written reasons for departure.
Accordingly, the sentences are vacated and the cause is remanded for resentencing in accordance with the guidelines, unless clear and convincing reasons for departure are stated.
SENTENCE VACATED; REMANDED.
UPCHURCH and SHARP, JJ., concur.
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Citator
Cited By
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Allen v. State, 522 So. 2d 850 (Fla. 4th DCA 1987)…mpts to rehabilitate is a valid reason for departure). However, the defendant’s cocaine addiction is not a valid reason for departure. Barbera v. State, 505 So. 2d 413 (Fla.1987); Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986); Vickers v. State, 490 So. 2d 231 (Fla. 5th DCA 1986); Degroat v. State, 489 So. 2d 1163 (Fla. 5th DCA), rev. denied, 496 So. 2d 142 (Fla.1986). Furthermore, there is no evidence in the record to support the trial court’s finding that the defendant supplied his cocaine habit from th…
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Taylor v. State, 502 So. 2d 1324 (Fla. 4th DCA 1987)…ffender”. While we understand and applaud what the trial court was trying to accomplish, namely, a cure for Taylor’s drug addiction, such stated reason for departure was not clear and convincing, that being the required standard. Vickers v. State, 490 So. 2d 231 (Fla. 5th DCA 1986). We reverse and remand for resentencing within the guidelines upon authority of Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984), approved, 476 So. 2d 161 (Fla. 1985); Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985); and…
Authorities Cited
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985)