STATE OF FLORIDA, CROSS-APPELLANT,
v.
ROBERT ALEX GOVAN, CROSS-APPELLEE
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Florida's appellate court reversed a downward departure from sentencing guidelines because the trial judge's stated reasons—the health of the defendant and his wife—were facially ambiguous and failed to relate to identified facts, thus not meeting the "clear and convincing" standard required by Florida Rule of Criminal Procedure 3.701(d)(11).
Vague and unsubstantiated health concerns do not constitute clear and convincing reasons to depart downward from sentencing guidelines.
[1] Reasons for departing downward from sentencing guidelines must be clear and convincing and must relate to identified facts in the case; vague and ambiguous statements reg…
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The trial judge's stated reasons for the downward departure from guidelines sentence.
The trial judge imposed a sentence below the recommended guidelines range, citing only "health of defendant and his wife in question" as justification…
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PER CURIAM.
The State appeals from Govan’s sentence in which the trial judge departed downward from the recommended guidelines sentence. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(J).
The reasons that the trial judge relied on for his departure sentence were: “health of defendant and his wife in question.” We conclude that the above reasons are not “clear and convincing” reasons to depart from the guidelines sentence under Florida Rule of Criminal Procedure 3.701(d)(11) because they are facially ambiguous, and because they fail to relate to any identified fact in the context of the case. Jefferson v. State, 489 So. 2d 860 (Fla. 1st DCA 1986); Alford v. State, 460 So. 2d 1000 (Fla. 1st DCA 1984). Cf. Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985), approved, State v. Boynton, 478 So. 2d 351 (Fla.1985), cert. denied, — U.S. —, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986) (court similarly un able to determine whether reasons for departure offered by the trial court were permissible or impermissible). We expressly reserve decision on the issues of whether the health of a defendant, or of a defendant’s spouse, might serve as clear and convincing reasons for departure until such time as these issues are properly presented for appellate review. Cf. State v. Villalovo, 481 So. 2d 1303 (Fla. 3d DCA 1986).
REVERSED AND REMANDED.
LETTS and GUNTHER, JJ., and PO-LEN, MARK E., Associate Judge, concur.
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Citator
Authorities Cited
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- State v. Boynton, 478 So. 2d 351 (Fla. 1985)
- Alford v. State, 460 So. 2d 1000 (Fla. 1st DCA 1984)
- State v. Villalovo, 481 So. 2d 1303 (Fla. 3d DCA 1986)
- Jefferson v. State, 489 So. 2d 860 (Fla. 1st DCA 1986)