MICHAEL ANTHONY SCOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Scott appeals his sentence departure from sentencing guidelines, challenging the trial court's reasons for imposing a harsher sentence. The court reverses and remands because one reason for departure violates precedent and the state failed to show the sentence would remain the same on resentencing.
The third reason (defendant's criminal history) is invalid under Hendrix v. State and falls within the per se reversal rule of State v. Mischler. Additionally, the state failed to show beyond a reasonable doubt that the sentence would be the same on resentencing under the Albritton standard, requiring reversal and remand.
[1] A trial court may not depart from sentencing guidelines based solely on the judge's disagreement with the presumptive sentence.
[2] A sentence departure based on the inadequacy of the recommended sentence for retribution, deterrence, rehabilitation, or public safety is invalid when it merely reflects…
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Join FLexlaw to unlock all legal intelligence“The third reason, however, is clearly invalid under the Supreme Court's opinion in Hendrix v. State, 475 So.2d 1218 (Fla.1985) and is also one of the three reasons that fall within the apparent per se reversal rule set forth in State v. Mischler, 488 So.2d 523 (Fla.1986).”
Establishes that the trial court's reliance on criminal history as a departure reason violated clear precedent.
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Join FLexlaw to unlock all legal intelligenceScott was sentenced to a term departing upward from the sentencing guidelines recommendation of 5½ to 7 years. The trial court justified the departure…
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[*449] ZEHMER, Judge.
Scott once again appeals his sentence departing from the sentencing guidelines cell, contending that one of the reasons for departure is improper. The trial court departed from the recommended sentence for the following reasons:
1. Defendant created an extreme risk to the safety of many citizens in his attempt to escape apprehension following commission of the crime.
2. The sentencing guidelines recommendation of 5V2 to 7 years is insufficient for retribution, deterrence, rehabilitation, and for the safety of the public.
3. Defendant’s criminal history indicates that a prison term of 5½ to 7 years is inadequate punishment for this defendant.
Scott does not challenge the first two reasons for departure because these reasons were upheld on Scott’s previous appeal, in which we reversed and remanded for resentencing. Scott v. State, 469 So. 2d 865 (Fla. 1st DCA 1985). We note, however, that there is now a conflict among the district courts over the validity of the second ground;1 and, in light of recent Supreme Court opinions, we seriously question whether this ground remains valid.2 We nevertheless stand on our prior decision with respect to this ground, but certify the apparent conflict with Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986) to the Supreme Court.
The third reason, however, is clearly invalid under the Supreme Court’s opinion in Hendrix v. State, 475 So. 2d 1218 (Fla.1985) and is also one of the three reasons that fall within the apparent per se reversal rule set forth in State v. Mischler, 488 So. 2d 523 (Fla.1986). Compare Rousseau v. State, 489 So. 2d 828 (Fla. 1st DCA 1986), with Daniels v. State, 492 So. 2d 449 (Fla. 1st DCA 1986). In any event, whether or not Mischler mandates reversal in this case, the state has not shown beyond a reasonable doubt, under the standard of appellate review set forth in Albritton v. State, 476 So. 2d 158 (Fla.1985), that the sentence would be the same on resentencing; therefore, the sentence is reversed and the case remanded for resentencing.
REVERSED AND REMANDED.
JO ANOS, J., and MINER, CHARLES E., Jr., Associate Judge, concur. . Compare Chaplin v. State, 488 So. 2d 555 (Fla. 1st DCA 1986) with Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986).
. In Williams v. State, 492 So. 2d 1308 (Fla.1986), the court held that the recited reason that "the recommended sentence under the guidelines is not commensurate with the seriousness of the crime’’ was not a valid reason because "a trial judge may not substitute his own opinion for that of the Sentencing Guidelines Commission simply because he does not agree with the presumptive sentence.” 492 So. 2d at 1309. The second reason in the case sub judice represents little more than the trial court’s disagreement with the recommended sentence.
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Scott v. State, 508 So. 2d 335 (Fla. 1987)…EHRLICH, Justice. We have for review Scott v. State, 492 So. 2d 448 (Fla. 1st DCA 1986), a sentencing guideline decision which the First District Court of Appeal certified as being in conflict with Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986), on the question of whether a trial court’s written finding that a…
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Scott v. State, 527 So. 2d 968 (Fla. 1st DCA 1988)…PER CURIAM. This is the third appeal to this court of a guidelines departure sentence originally imposed in 1984. See Scott v. State, 508 So. 2d 335 (Fla.1987); Scott v. State, 492 So. 2d 448 (Fla. 1st DCA 1986); Scott v. State, 469 So. 2d 865 (Fla. 1st DCA 1985). Because the latest sentence fails to properly reflect the exact amount of credit for time served to which Scott is entitled, we remand with directions that the sentence be corr…
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Williams v. State, 492 So. 2d 1388 (Fla. 1st DCA 1986)…y been weighed in arriving at a presumptive sentence.” Williams v. State, 492 So. 2d 1308 at 1309; State v. Mischler, 488 So. 2d 523 (Fla.1986); State v. Davis, 477 So. 2d 565 (Fla.1985); Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Scott v. State, 492 So. 2d 448 (Fla. 1st DCA 1986); Bailey v. State, 492 So. 2d 738 (Fla. 1st DCA 1986); Grooms v. State, 490 So. 2d 1053 (Fla. 1st DCA 1986). Since the reasons given by the trial court for departure are invalid, the conviction is affirmed but the sentence is rev…
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)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Scott v. State, 469 So. 2d 865 (Fla. 1st DCA 1985)
- Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986)
- Chaplin v. State, 488 So. 2d 555 (Fla. 1st DCA 1986)
- Rousseau v. State, 489 So. 2d 828 (Fla. 1st DCA 1986)
- Daniels v. State, 492 So. 2d 449 (Fla. 1st DCA 1986)