ROBERT B. MUFF, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court's upward sentencing departure based on "guideline punishment is not sufficient" is invalid under Hendrix v. State, requiring vacation and resentencing.
A trial court cannot depart upward from guideline sentences based solely on the reason that guideline punishment is not sufficient.
[1] A trial court cannot justify an upward departure from guideline sentences by stating that the guideline punishment is not sufficient; such a reason does not comply with F…
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Reason listed by trial judge for departing upward from recommended guideline sentence, held to be invalid.
The trial judge imposed a sentence above the guideline recommendation, citing "guideline punishment is not sufficient" as a reason for the upward depa…
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COWART, Judge.
This is another sentencing guideline departure case.
“Guideline punishment is not sufficient” was one of the reasons listed by the trial judge for departing upward from the recommended guideline sentence.
This is not a valid reason for departure under Hendrix v. State, 475 So. 2d 1218 (Fla.1985). See Medlock v. State, 489 So. 2d 848 (Fla. 5th DCA 1986); Safford v. State, 488 So. 2d 141 (Fla. 5th DCA 1986); Brown v. State, 487 So. 2d 1158 (Fla. 5th DCA 1986); Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986); Scott v. State, 482 So. 2d 607 (Fla. 5th DCA 1986); Clark v. State, 481 So. 2d 994 (Fla. 5th DCA 1986). But see Chaplin v. State, 488 So. 2d 555 (Fla. 1st DCA 1986) (recommended sentence not sufficient for retribution, rehabilitation, or deterrence a valid reason). Because of Albritton v. State, 476 So. 2d 158 (Fla.1985),1 we vacate the sentence and remand the case for resentencing to either the recommended guideline sentence or a departure sentence that conforms to the sentencing guidelines (Fla.R. Crim.P. 3.701).
SENTENCE VACATED; CAUSE REMANDED.
ORFINGER and UPCHURCH, JJ., concur. . The sentencing judge made no explicit and clear statement that the same sentence would have been imposed absent this invalid reason. The extreme difficulty of the State showing beyond a reasonable doubt that the absence of the invalid reason would not have affected the departure sentence has been noted by this court in Brown v. State, 481 So. 2d 1271 (Fla. 5th DCA 1986). See abo Hankey v. State, 485 So. 2d 827 (Fla. 1986).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williams v. State, 492 So. 2d 1388 (Fla. 1st DCA 1986)…on for departure. The first, that the recommended guideline sentence is insufficient for retribution, was held invalid in Williams v. State, 492 So. 2d 1308 (Fla.1986), and in Scurry v. State, 489 So. 2d 25, 27-29 (Fla.1986). See also Muff v. State, 490 So. 2d 1065 (Fla. 5th DCA 1986). The second ground for departure, deterrence, is also invalid. Scurry v. State, 489 So. 2d at 27-29; Santiago v. State, 478 So. 2d 47 (Fla. 1985); Alford v. State, 460 So. 2d 1000 (Fla. 1st DCA 1984); Allen v. State, 476 So. 2d 3…
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Bailey v. State, 496 So. 2d 225 (Fla. 5th DCA 1986)…PER CURIAM. The trial judge was dissatisfied with the recommended guidelines sentence and imposed “a more realistic sentence.” 1 This is an insufficient reason for departure. See Muff v. State, 490 So. 2d 1065 (Fla. 5th DCA 1986); Hendrix v. State, 475 So. 2d 1218 (Fla.1985) (insufficiency of a guideline sentence to punish wrongdoer an invalid reason for departure). We vacate the sentence and remand the case for resentencing to either the recommended gui…
Authorities Cited (12 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Hankey v. State, 485 So. 2d 827 (Fla. 1986)
- Brown v. State, 481 So. 2d 1271 (Fla. 5th DCA 1986)
- Safford v. State, 488 So. 2d 141 (Fla. 5th DCA 1986)
- Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986)
- Elvis Nathaniel Clark v. State, 481 So. 2d 994 (Fla. 5th DCA 1986)
- Chaplin v. State, 488 So. 2d 555 (Fla. 1st DCA 1986)
- Drayton Eugene Scott v. State, 482 So. 2d 607 (Fla. 5th DCA 1986)