ALFONSO WILLIAMS, APPELLANT
v.
STATE OF FLORIDA, APPELLEE
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Alfonso Williams was convicted of armed robbery and sentenced above the guideline range. The court affirmed his conviction but reversed his sentence because the trial court failed to provide clear and convincing reasons for departing from the sentencing guidelines, relying improperly on factors already incorporated into the guidelines calculation.
The sentence must be reversed and remanded for resentencing because the trial court failed to provide clear and convincing reasons for departure. The reasons given were either based on prior criminal history already factored into the guidelines, improper reliance on probation violations when incarceration was already recommended, or an improper finding of habitual offender status without statutory safeguards.
[1] Prior criminal history already factored into sentencing guidelines scoresheet cannot serve as a basis for departing from the guidelines.
[2] Violation of prior probation is not a clear and convincing reason for departure from sentencing guidelines when the guidelines sentence calls for incarceration.
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Join FLexlaw to unlock all legal intelligence“The trial court, not having the benefit of recent case law, has not stated clear and convincing reasons for departing from the guidelines.”
Establishes the core deficiency in the sentencing decision—lack of clear and convincing reasons for guideline departure.
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Join FLexlaw to unlock all legal intelligenceWilliams was convicted of armed robbery at a convenience store in Fernandina Beach. He had six prior felony convictions dating back to 1973, including…
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NIMMONS, Judge.
Williams appeals his conviction and sentence for armed robbery at a convenience store in Fernandina Beach. We find his arguments urging reversal of the conviction to be unpersuasive. However, we are compelled to reverse the sentence because of failure to comply with the law regarding sentencing guidelines.
The trial court gave the following reasons for departing from the sentencing guidelines:
1. Alfonso Williams, Jr., has six (6) pri-or felony convictions.
2. Two (2) of the felony convictions were for escape while incarcerated.
3. The Defendant had been placed on probation on two (2) separate occasions and violated both probations by committing separate crimes. 4. Defendant had been previously convicted of assault to rob with a knife.
5. Defendant’s felony record goes back to 1973.
6. The Court feels that the Defendant is a career criminal based on his juvenile and prior felony convictions which include escapes and violations of probation.
7. The court is attaching a copy of the sentencing hearing.
The trial court, not having the benefit of recent case law, has not stated clear and convincing reasons for departing from the guidelines. The first, second, fourth and fifth reasons are essentially based upon the defendant’s prior criminal record. The guidelines scoresheet shows that 82 of the total 224 points are attributable to the defendant’s prior convictions. Without such prior convictions, the guidelines sentence range would have been 3V2 to 4V2 years incarceration. With such prior convictions, the allowable sentence range under the guidelines was 9 to 12 years. Matters which have already been factored into the guidelines sentence cannot b.e relied upon as valid reasons for departure. State v. Davis, 477 So. 2d 565 (Fla.1985); Hendrix v. State, 475 So. 2d 1218 (Fla. 1985); Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986).
The third reason is also invalid inasmuch as the violation of prior probations is not a clear and convincing reason for departure where, as here, the guidelines sentence calls for incarcerative punishment. Compare Simmons v. State, 483 So. 2d 530 (Fla. 1st DCA 1986) (prior violation of probation adequate reason where recommended sentence is nonincarcerative).
As for the sixth reason, in which the defendant is referred to as a “career criminal,” the trial court is apparently finding that Williams is an habitual offender without providing the procedural safeguards or making the specific findings required by the habitual offender statute. See Cuth-bert v. State, 459 So. 2d 1098 (Fla. 1st DCA 1984); Crapps v. State, 483 So. 2d 544 (Fla. 1st DCA 1986).
We have also examined the departure reasons collectively to determine whether the departure is salvageable under the theory relied upon in Williams v. State, 484 So. 2d 71 (Fla. 1st DCA 1986), where the various reasons taken as a whole could properly be viewed as significantly more than reference to the defendant’s prior record. We conclude that the departure cannot be sustained under Williams. See Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986).
Sentence REVERSED and REMANDED for resentencing.
MILLS, and WENTWORTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Atwaters v. State, 495 So. 2d 1219 (Fla. 1st DCA 1986)…l reason for departure — that appellant was not a good probationer — is an irrelevant factor in this case since probation was not an option even under the guidelines. Therefore, reason d) also was an improper reason for departure. Williams v. State, 490 So. 2d 1026 (Fla. 1st DCA 1986). Since the record does not clearly indicate that the trial judge would not have altered his decision to depart in the absence of the departure reasons we have found to be invalid, we reverse and remand to the trial judge for rese…
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Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986)…al was an invalid reason because the court may not base a reason of departure on an apparent finding that the defendant is an habitual offender without providing the procedural safeguards required by the habitual offender statute. Williams v. State, 490 So. 2d 1026 (Fla. 1st DCA 1986). Finally, the court stated that the appellant endangered the lives of many people by reason of a high speed chase. Although evincing a flagrant disregard for the safety of others is a valid reason for departure, Scurry v. State,…
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Onelio Silveira v. State, 525 So. 2d 429 (Fla. 1st DCA 1988)…ns collectively to determine whether the departure is valid under the theory in Williams, supra, which viewed the reasons given as a whole in order to determine if they were more than a reference to a scored prior record. See also Williams v. State, 490 So. 2d 1026, 1027 (Fla. 1st DCA 1986). The trial court was also evidently concerned with appellant’s particularly violent nature, as indicated by the recited string of convictions for battery and the instant aggravated assault. A particular defendant’s violent…
Previewing 3 of 4 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)
- Cunningham v. State, 481 So. 2d 72 (Fla. 4th DCA 1985)
- Williams v. State, 484 So. 2d 71 (Fla. 1st DCA 1986)
- Cuthbert v. State, 459 So. 2d 1098 (Fla. 1st DCA 1984)
- State v. Davis, 477 So. 2d 565 (Fla. 1985)
- Simmons v. State, 483 So. 2d 530 (Fla. 1st DCA 1986)
- Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986)
- Alander Crapps v. State, 483 So. 2d 544 (Fla. 1st DCA 1986)