JAMES DENSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Denson was convicted of lewd and lascivious assault and sexual battery on a child and appealed his sentence. The appellate court found that the trial court improperly departed from sentencing guidelines based on perjury and dangerousness conclusions unsupported by conviction, and improperly delegated its restitution authority to a probation officer, requiring remand for resentencing.
The trial court erred in departing from sentencing guidelines based on perjury and dangerousness conclusions unsupported by convictions, which are excluded as departure grounds under Rule 3.701(d)(11). The imposition of restitution without advance notice was not error under the 1984 amendment to Section 775.089. However, the trial court committed reversible error by delegating its judicial responsibility to a probation officer to determine restitution payments.
[1] A trial court may not depart from sentencing guidelines based on a defendant's alleged perjury or commission of unconvicted offenses.
[2] A trial court may not depart from sentencing guidelines based on a defendant being a danger to children if that conclusion is based on unconvicted offenses.
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“Lying at sentencing is equivalent to perjury — an offense for which no conviction had been obtained. Furthermore, the conclusion that the appellant was a danger to children was grounded upon a revelation in the presentence investigation report that he had committed similar offenses in the past, for which he had not been convicted. Such reasons are clearly excluded as grounds for departure by Rule 3.701(d)(ll) of the Florida Rules of Criminal Procedure.”
Establishes that trial court's departure grounds violated sentencing guidelines and Rule 3.701(d)(11)
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Join FLexlaw to unlock all legal intelligenceDenson was convicted of lewd and lascivious assault and sexual battery on a child 11 years or younger. At sentencing, the trial court imposed a senten…
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FRANK, Judge.
The appellant, who was convicted of lewd and lascivious assault and of sexual battery on a child 11 years or younger, raises three issues on appeal, two of which involve sentencing and are meritorious.
The trial court stated that it was sentencing the appellant beyond the guidelines range because the appellant had lied at sentencing and was a danger to children. Lying at sentencing is equivalent to perjury — an offense for which no conviction had been obtained. Furthermore, the conclusion that the appellant was a danger to children was grounded upon a revelation in the presentence investigation report that he had committed similar offenses in the past, for which he had not been convicted. Such reasons are clearly excluded as grounds for departure by Rule 3.701(d)(ll) of the Florida Rules of Criminal Procedure.
The trial court also ordered the appellant to pay an unspecified amount of restitution to the victim’s natural father. Although the appellant urges that restitution was imposed without affording him notice and an opportunity to be heard the court committed no error. Section 775.089 was amended in 1984 to require the court to order restitution unless it states reasons not to do so. “Hence, defendants such as appellant are now on notice that restitution will be considered as a part of every sentencing, and there is no longer any need for advance notice to be given concerning the possibility of restitution.” Gilmore v. State, 479 So. 2d 791 (Fla.2d DCA 1985).
The court did err, however, when it imposed the following condition of probation: “You will pay restitution to Randy Hodge for all expenses incurred in order to secure psychological treatment for victim. ... These payments will be made as directed by your Probation Officer.” By ordering the appellant to pay reparation as directed by a probation officer, the court improperly delegated its judicial responsibility and thus committed reversible error. McDonald v. State, 478 So. 2d 113 (Fla.2d DCA 1985); J.J.S. v. State, 465 So. 2d 621 (Fla.2d DCA 1985).
Accordingly, we reverse and remand this case for resentencing.
GRIMES, A.C.J., and PATTERSON, DAVID F., Associate Judge, concur.
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Citator
Cited By (13 total)
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McCASKILL v. State, 520 So. 2d 664 (Fla. 1st DCA 1988)…on officer, Masslieno v. State, 498 So. 2d 628 (Fla. 1st DCA 1986). No doubt it would have been reversible error for the court to explicitly order the probation officer to determine the amount of restitution. J.J.S. v. State, supra; Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986). While the sentence did not contain such direction, it nevertheless left the amount open for determination at a future time without directing whether the amount would be set by the court upon hearing or by the probation officer up…
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Edmunds v. State, 559 So. 2d 415 (Fla. 2d DCA 1990)…ndant was convicted, trafficking in cocaine, and relates to conduct which is not itself criminal. See Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979). Furthermore, it delegates impermissible authority to a probation officer. See Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986). Condition twenty-one has previously been stricken by this court. See Huff v. State, 554 So. 2d 616 (Fla. 2d DCA 1989). Accordingly, we strike the imposition of court costs and special conditions of probation eleven and twenty-on…
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Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987)…Nevertheless, we must agree with appellant’s contention that the trial court erred in delegating the determination of the amount of restitution to appellant’s probation officer. Mansell v. State, 498 So. 2d 604 (Fla. 2d DCA 1986); Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986); McDonald v. State, 478 So. 2d 113 (Fla. 2d DCA 1985). Accordingly, we reverse the order of restitution and remand for a proper restitution hearing with instructions to the court to set a reasonable amount. Finally, appellant cor…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- J.J.S. v. State, 465 So. 2d 621 (Fla. 2d DCA 1985)
- McLAIN v. Palm Beach Cnty., 479 So. 2d 791 (Fla. 4th DCA 1985)
- McDONALD v. State, 478 So. 2d 113 (Fla. 2d DCA 1985)