DONALD W. WEIR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Weir appealed his departure sentence imposed above the sentencing guidelines. The appellate court vacated the sentence, finding that none of the trial court's four stated reasons for departure—failure to appear, prior failure to appear charge, refusal to cooperate, and lack of remorse—constituted proper bases for departure under Florida law.
The court held that none of the trial court's stated reasons for departure were proper. Departure based on failure to appear (when the defendant has not been convicted of that offense), lack of remorse, or disregard for the law are all improper bases for departure sentencing.
[1] A departure sentence is impermissible when based on a failure to appear for a crime for which the defendant has not been convicted.
[2] Lack of remorse is an inappropriate basis upon which to impose a departure sentence.
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“a departure for failure to appear constitutes an impermissible deviation for a crime for which the defendant has not been convicted”
Establishes the core principle that departure sentences cannot be based on charges that were not the subject of conviction
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Join FLexlaw to unlock all legal intelligenceWeir pleaded guilty to uttering a worthless check and burglary. A prior felony charge of failure to appear was dismissed as part of the plea bargain. …
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COBB, Chief Judge.
This is an appeal from a departure sentence. We find that none of the reasons for departure expressed by the trial court is clear and convincing and, accordingly, vacate the sentence.
The trial court’s bases for departure can be summarized as follows:
(1) That the defendant has repeatedly refused to cooperate;
(2) That the defendant absconded before sentence could be passed and did not appear for the sentencing hearing on August 21, 1985;
(3) That the defendant has a prior felony charge of failure to appear in court;
(4) That the failure to appear and cooperate indicates his lack of remorse and inability to comply with the law.
Two of the trial court’s reasons for departure, numbers two and three, involve the defendant’s failure to appear when required to do so. In fact, the prior felony charge of failure to appear was dismissed as part of the plea bargain in this case, wherein the defendant pled guilty to one count of uttering a worthless check and one count of burglary. In Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985), this court held that a departure for failure to appear constitutes an impermissible deviation for a crime for which the defendant has not been convicted. See Fla.R.Crim.P. 3.701(d)(11). It is clear that reasons two and three here fall within this category and, thus, a departure on either basis is improper. Reasons one and four involve the defendant’s failure to cooperate with the probation office, which to the court indicated a lack of remorse and an inability to comply with the law. It is not clear from the record what the noncompliance consisted of. In any event, lack of remorse is an inappropriate basis upon which to impose a departure sentence. See Brown v. State, 483 So. 2d 743 (Fla. 5th DCA 1986); Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986). Similarly, a disregard for the law is an equally improper basis for departure. Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986).
Since all of the trial court’s reasons for departure are improper, the sentence is vacated and the cause remanded for sentencing within the guidelines.
VACATED and REMANDED.
ORFINGER and COWART, JJ., concur.
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Washington v. State, 501 So. 2d 133 (Fla. 2d DCA 1987)…scoresheet. Second, appellant’s behavior does not fit Booker’s escalating pattern. Appellant’s cavalier attitude was an improper ground for departure. Lack of remorse is an invalid ground for departure from the sentencing guidelines. Weir v. State, 490 So. 2d 234 (Fla. 5th DCA 1986). Finally, the trial court erred in imposing court costs on appellant of $10.00 pursuant to section 960.20, Florida Statutes (1985) and $2.00 pursuant to section 943.25(4), Florida Statutes (1985). The record does not reveal that…
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Roseman v. State, 497 So. 2d 986 (Fla. 5th DCA 1986)…oncerning guideline departures, but did make oral findings listing bases for retaining jurisdiction, including the defendant’s inability to comply with the law and his lack of remorse. These reasons are insufficient for departure. See Weir v. State, 490 So. 2d 234 (Fla. 5th DCA 1986).…
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Johnson v. State, 503 So. 2d 955 (Fla. 2d DCA 1987)…So. 2d 115 (Fla. 2d DCA 1986). Johnson’s cavalier attitude is an improper ground for departure. Lack of remorse is an invalid ground for departure from the sentencing guidelines. Washington v. State, 501 So. 2d 133 (Fla.2d DCA 1987); Weir v. State, 490 So. 2d 234 (Fla. 5th DCA 1986). Johnson’s extensive prior criminal record is an improper ground for departure. Johnson’s prior record has already been figured into the guidelines scoresheet. Carnegie v. State, 498 So. 2d 1020 (Fla. 2d DCA 1986); Hendrix v. St…
Authorities Cited
- Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985)
- LEE v. State, 486 So. 2d 709 (Fla. 5th DCA 1986)
- Brown v. State, 483 So. 2d 743 (Fla. 5th DCA 1986)
- Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986)