NORMAN LEON BURGESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida appellate court reversed the trial court's departure from sentencing guidelines for Norman Burgess, finding that the court failed to provide clear and convincing evidence supporting the departure reasons cited.
The court reversed and remanded for resentencing within the guidelines, holding that while the first two reasons could theoretically support departure under appropriate circumstances, the trial court's conclusions were not supported by the record, and the third reason did not set forth any clear and convincing basis for departure.
[1] A trial court's departure from sentencing guidelines is erroneous when the stated reasons for departure are not supported by the record.
[2] Psychological trauma suffered by a victim, if unusually greater than that inherent in the offense, may serve as a basis for 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“the trial court's conclusions for its first and second reasons are not supported by the record”
Establishes the court's finding that the trial court failed to support its departure reasons with evidence
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Join FLexlaw to unlock all legal intelligenceBurgess was convicted of a crime and sentenced above the guideline range. The trial court justified departure based on: (1) defendant's failure at reh…
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PER CURIAM.
In this appeal, the sole issue to be decided is whether the trial court erred in its departure from the sentencing guidelines. We find error in the departure and therefore, we reverse and remand for resentencing.
In its order, the trial court cited the following reasons for departure:
[Defendant] has failed all prior attempts at rehabilitation through [previous] sentences of jail time, probation [and] prison time [and] his criminal history reflects an inability to be rehabilitated (see Higgs v. State [455 So. 2d 451] 9 F.L.W. 1895[)] [and] further indicates that he is a danger to members of the community [and] to society.
The guidelines, while scoring for physical injury, do not provide for the specific psychological trauma suffered by the victim in the case. Green v. State [455 So. 2d 586], 9 F.L.W. 1909
This offense was committed while the defendant was on an earlier felony probation and was a violation of a substantial condition of probation. Carter v. State, 452 So. 2d 953.
Under appropriate circumstances, the first two reasons could furnish a valid basis for departure. See, e.g., Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985) (departure affirmed where trial court entered a written “Order of Aggravating Circumstances” outlining in “great detail” defendant’s probation history in its grounds for departure); Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986) (psychological trauma can be basis for departure where it is unusually greater than the trauma necessarily contained in the elements of the charge). Here, however, the trial court’s conclusions for its first and second reasons are not supported by the record. See State v. Mischler, 488 So. 2d 523 (Fla.1986).
The court’s third reason recites that the defendant committed the offense while on an earlier felony probation and this offense was a violation of a substantial condition of probation. The fact defendant committed the offense while on probation was factored into the guidelines scoresheet since defendant was under legal constraint. Further, violations of a substantial condition of probation authorize an increase of defendant’s sentences to the next higher cell. Fla.R.Crim.P. 3.701(d)(14). However, the third reason does not set forth any clear and convincing basis for departure in this case. Accordingly, we vacate appellant’s sentences and remand for resentencing within the guidelines.
RYDER, C.J., and SCHEB and SAND-ERLIN, JJ., concur.
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Desmond H. Franks v. State, 502 So. 2d 1369 (Fla. 2d DCA 1987)…So. 2d 552 (Fla. 2d DCA 1986); Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985). We do find that the second reason given by the trial court was improper. Assuming the reason would be valid given appropriate record support, see Burgess v. State, 491 So. 2d 1167 (Fla. 2d DCA 1986), Adams v. State, 483 So. 2d 121 (Fla. 2d DCA 1986), the record before us is insufficient to support such a conclusion. State v. Mischler, 488 So. 2d 523 (Fla.1986). The state has not met its burden of showing beyond a reasonable…
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Parsons v. State, 491 So. 2d 1247 (Fla. 2d DCA 1986)…348 (Fla. 2d DCA 1985). However, we find no support in the record for the conclusion that the victim sustained substantial or unusual psychological or emotional trauma. Accordingly, this is an invalid reason for departure. See also Burgess v. State, 491 So. 2d 1167 (Fla. 2d DCA 1986); Tompkins, supra. (4) Pattern of criminal conduct. The trial court focused on appellant’s prior criminal history, specifically, the circumstances of prior offenses for which appellant was convicted, as well as the circumstances o…
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Horton v. Crosby, 848 So. 2d 504 (Fla. 3d DCA 2003)…enalty for his crime). In this case, at the time in which Horton committed the offense in case number CFM85-165, the failure to rehabilitate standing alone was a valid reason to depart from the sentencing guidelines. See Burgess v. State of Florida, 491 So. 2d 1167, 1168 (Fla. 2d DCA 1986). However, rule 3.701(d)(11), Florida Rules of Criminal Procedure (1983), in effect at the time in which the instant offense was committed, prohibits departures when the reasoning depends on offenses for which convictions hav…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984)
- Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986)
- Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984)