LEROY S. FRANCIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Francis was convicted of attempted trafficking in cocaine and sentenced to 13 years. The trial court departed upward from the sentencing guidelines based on several aggravating factors. The appellate court reversed and remanded for resentencing because three of the trial court's ten reasons for departure were impermissible under Florida law.
The trial court impermissibly departed from the guidelines for three reasons: (1) using force to commit the offense, when the jury rejected firearm charges; (2) emotional trauma to police officers, who were trained undercover drug officers with no proven psychological injury; and (3) frequent possession of weapons from prior crimes, which should have been factored into the initial guidelines calculation. The case is remanded for resentencing.
[1] A trial court may not depart from recommended sentencing guidelines based on factors relating to offenses for which no conviction has been obtained.
[2] Charges arising from the same criminal episode that did not result in a conviction cannot be used as reasons for a departure sentence.
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Join FLexlaw to unlock all legal intelligence“reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained”
Establishes the foundational rule that aggravating factors must relate only to offenses for which the defendant was convicted, not unfiled or acquitted charges.
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Join FLexlaw to unlock all legal intelligenceLeroy Samuel Francis was charged with trafficking in cocaine, possession of a firearm during felony commission, and carrying a concealed firearm. He w…
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PER CURIAM.
Leroy Samuel Francis was charged in a three-count information with trafficking in cocaine, possession of a firearm during the commission of a felony, and carrying a concealed firearm. Mr. Francis was acquitted of these charges, but convicted of the lesser-included offense of attempted trafficking in cocaine. Mr. Francis appeals his thirteen-year prison sentence on various grounds, but we need discuss only whether the trial court impermissibly departed from the recommended guidelines sentence.
One of the reasons the trial court improperly aggravated the sentence of defendant was for using more force than necessary to commit the offense. The jury rejected any charges involving the use of a firearm, and the appellant was not charged with resisting arrest with violence or battery upon a law enforcement officer. The Rules of Criminal Procedure state that “[rjeasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained,” Florida Rule of Criminal Procedure 3.701(d)(1), and Banzo v. State, 464 So. 2d 620, 621-22 (Fla. 2d DCA 1985), holds that “[cjharges arising from the same criminal episode which are not filed cannot be used as reasons for departure.” Thus, neither the appellant’s possession of a firearm nor his alleged acts of violence upon arrest were proper reasons for aggravating the appellant’s sentence.
Another reason used by the trial judge to depart from the recommended guidelines sentence was the emotional trauma inflicted upon the police officers. While a victim’s extreme psychological trauma can be a valid basis for aggravating a sentence, see, e.g., Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984) (assailant repeatedly telling victim he was going to kill her), such is not the case here. The policemen in our case were accustomed to the stress and pressure of working undercover on drug cases. Furthermore, there was no evidence presented that the policemen suffered any psychological trauma as a result of this criminal incident.
The trial judge also aggravated the sentence of the defendant because he found that the defendant had frequently possessed weapons and had a propensity for violence. While the use of violence during the commission of the present offense is a valid reason for departure, Davis v. State, 476 So. 2d 303 (Fla. 1st DCA 1985), the “frequent possession of weapons” reason relates impermissibly to previous convictions which should have already been factored into the guidelines sentence. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Therefore, appellant’s possession of weapons during previous crimes was an improper basis for departure.
We thus find that three of the ten reasons given by the trial judge for departure were impermissible. As the State has not proven beyond a reasonable doubt that the invalid reasons would not have affected the sentence, we remand this case for resentencing in conformity with this opinion. Albritton v. State, 476 So. 2d 158 (Fla.1985).
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
DOWNEY, ANSTEAD and GUNTHER, JJ., concur.
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Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986)…erson who drives a vehicle in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving.” This reason therefore was also invalid. See Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985); see also, Francis v. State, 492 So. 2d 475 (Fla. 4th DCA 1986). We note that this court has previously certified to the supreme court the question whether the trial court is permitted to consider any facts relating to the instant offense as a basis for departure if such factors would have su…
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Francis v. State, 512 So. 2d 1162 (Fla. 4th DCA 1987)…PER CURIAM. The trial court deviated from the sentencing guidelines in sentencing appellant upon remand from this court. See Francis v. State, 492 So. 2d 475 (Fla. 4th DCA 1986). While it is likely that the trial court may have used some of the reasons mentioned in Francis, the trial court did not furnish written reasons for the departure as required by Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987)…
Authorities Cited
- 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)
- Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984)
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)
- Davis v. State, 476 So. 2d 303 (Fla. 1st DCA 1985)