WILBERT EARL POWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Powell pleaded guilty to lewd and lascivious conduct and interference with custody of a minor. He appeals his sentence of seven years' imprisonment on Count I and one year jail on Count II, arguing the trial court improperly departed from the sentencing guidelines. The appellate court reversed the sentence because the trial court relied on improper factors in justifying the departure.
The trial court's departure from the recommended sentencing guidelines was improper for two reasons: (1) it relied on factors relating to charges for which Powell was not convicted (sexual battery involving threat, force, and violence), and (2) it was based on the court's general perception that the guideline sentence was insufficient for the seriousness of the crime. Both reasons violate Florida sentencing law.
[1] A trial court may not depart from a recommended sentencing range based on factors relating to the instant offense for which a conviction was not obtained.
[2] A trial court may not depart from a recommended sentencing range based on the perception that the recommended sentence is not commensurate with the seriousness of the cri…
Previewing 2 of 3 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 first reason is improper as it includes factors relating to the instant offense for which a conviction was not obtained, i.e., the sexual battery charge, in violation of rule 3.701 d.ll., Florida Rules of Criminal Procedure.”
Establishes that sentencing courts cannot rely on factors related to charges of which the defendant was not convicted.
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Join FLexlaw to unlock all legal intelligencePowell was charged with sexual battery and kidnapping of a child. By agreement with the State, he entered a plea of guilty to lewd and lascivious cond…
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WIGGINTON, Judge.
Powell was charged in a two-count information with sexual battery upon a person over the age of eleven years by threatening to use force or violence,1 and with the kidnapping of a child under the age of thirteen.2 By agreement with the State, he entered a plea of guilty to lewd and lascivious conduct in the presence of a minor,3 and to interference with the custody of a minor.4 He now appeals, arguing the trial court erred in departing from the recommended sentence and in the extent of the departure. We reverse.
In sentencing Powell to a term of seven years’ imprisonment on Count I and one year in the county jail on Count II, the trial court departed from the recommended sentencing range of thirty months to three and one-half years. The court’s written reasons for departure were that the defendant “sexually molested a child through the use of threat, force and violence,” and that “[t]he guidelines are insufficient under the circumstances of this case.” The first reason is improper as it includes factors relating to the instant offense for which a conviction was not obtained, i.e., the sexual battery charge, in violation of rule 3.701 d.ll., Florida Rules of Criminal Procedure. State v. Mischler, 488 So. 2d 523 (Fla.1986); Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985). There is nothing in the supreme court’s recent opinion in Lerma v. State, 497 So. 2d 736 (Fla.1986), that persuades us otherwise.
We also find the second reason to be improper. Williams v. State, 492 So. 2d 1308 (Fla.1986); Scurry v. State, 489 So. 2d 25 (Fla.1986). It is error “to depart based on the trial court’s perception that the recommended sentence under the guidelines is not commensurate with the seriousness of the crime.” Williams, at 1309.
Because we reverse the sentence for the above-stated reasons, we need not reach Powell’s argument that the extent of departure was excessive. However, we note that the legislature recently amended section 921.001(5) to add: “The extent of departure from a guideline sentence shall not be subject to appellate review.”5
Accordingly, we reverse the sentence and remand the cause to the trial court to re-sentence Powell within the recommended range provided by the guidelines. Williams.
ERVIN and BARFIELD, JJ., concur. . § 794.01 l(4)(b), Fla.Stat. (Supp.1984).
. § 787.01(l)(a), Fla.Stat. (Supp.1984).
. § 800.04, Fla.Stat. (Supp.1984).
. § 787.03, Fla.Stat. (1983).
. Ch. 86-273, s. 1, Laws of Florida (1986).
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Citator
Cited By
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Foister v. State, 510 So. 2d 371 (Fla. 1st DCA 1987)…as five years. The trial court, however, departed and sentenced him to ten years incarceration. Foister correctly asserts and the state concedes that the reasons for departure relied upon by the trial court are inappropriate. See, Powell v. State, 495 So. 2d 828 (Fla. 1st DCA 1986). Nonetheless, the state contends the trial court should be allowed upon remand once again to depart. We disagree. When each “reason” stated by the trial court in support of departure is determined to be invalid, resentencing foll…
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Lucian Herman Hawkins v. State, 522 So. 2d 488 (Fla. 1st DCA 1988)…constitute offenses of which the defendant was acquitted or with which he was neither charged nor convicted. Davis v. State; State v. Tyner, 506 So. 2d 405 (Fla.1987); Crouse v. State, 518 So. 2d 287, 12 FLW 2280 (Fla. 2d DCA 1987); Powell v. State, 495 So. 2d 828 (Fla. 1st DCA 1986). Accordingly, the fact that the victim was particularly vulnerable because of her mental retardation is an improper grounds for departure in this case involving the offense of sexual battery under § 794.011, Fla.Stat. (1985). Si…
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Cowan v. State, 505 So. 2d 640 (Fla. 1st DCA 1987)…id reason for departure). Because the reasons cited by the trial court for departure are invalid, the sentence is reversed and the case remanded for resentencing within the guidelines. Williams v. State, 492 So. 2d 1308 (Fla.1986); Powell v. State, 495 So. 2d 828 (Fla. 1st DCA 1986). ERVIN and WIGGINTON, JJ., concur. . In the recent case of Barrentine v. State, 504 So. 2d 13 (Fla. 1st DCA 1987), it was noted that Lerma had been construed in Kokx v. State, 498 So. 2d 534 (Fla. 1st DCA 1986), to be confined…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985)
- Lerma v. State, 497 So. 2d 736 (Fla. 1986)