JACK MIZE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed defendant's sentence because trial court improperly included points for pretrial release status under the sentencing guidelines' "legal status" category, which expressly excludes such pretrial release forms.
Pretrial release status is not a permissible factor under the "legal status" category of Florida's sentencing guidelines.
[1] Pretrial release status is expressly excluded from the "legal status" category under Florida Rule of Criminal Procedure 3.701(d) and cannot be used as a sentencing guidel…
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Join FLexlaw to unlock all legal intelligence“Forms of pretrial release (bail) were expressly excluded from this definition.”
Guidelines Commission comment explaining that pretrial release is not included in the legal status definition.
Mize was charged with a felony in Monroe County while on pretrial custody release for a Dade County felony charge. The trial court included points for…
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SCHWARTZ, Chief Judge.
In computing the defendant’s guidelines score, the trial court, over objection, included points under the “legal status” or “legal constraint” category because, at the time Mize committed the instant offense in Monroe County, he had been granted pretrial custody release on a Dade County felony charge. We agree with Mize that this addition was unauthorized.
Florida Rule of Criminal Procedure 3.701d expressly provides:
6. Legal status at time of offense is defined as follows: Offenders on parole, probation, or community control; in custody serving a sentence; escapees; fugitives who have fled to avoid prosecution or who have failed to appear for a criminal judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.
The self-evident fact that this does not include a pretrial release status is confirmed by the Guidelines Commission’s comment to the rule which states that “[fjorms of pretrial release (bail) were expressly excluded from this definition.” Sentencing Guidelines Commission, Guidelines Manual, Rule 3.701(d)6 comment (1983). Accordingly, the sentence is reversed and the cause remanded for resentencing under the guidelines without including points for the “legal status” factor. Reversed.
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Carmine Annunziata v. State, 697 So. 2d 997 (Fla. 5th DCA 1997)…nses. Browning v. State, 625 So. 2d 960, 961 (Fla. 5th DCA 1993); Fox v. State, 608 So. 2d 132, 132 (Fla. 3d DCA 1992); Mosley v. State, 543 So. 2d 340, 340 (Fla. 1st DCA 1989); Jones v. State, 520 So. 2d 672, 673 (Fla. 5th DCA 1988); Mize v. State, 495 So. 2d 845, 846 (Fla. 3d DCA 1986). Generally, the definition of “legal status” under construction in those cases read as follows: Offenders on parole, probation, or community control; offenders in custody serving a sentence; escapees; fugitives who have fled…
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State v. Myers, 515 So. 2d 333 (Fla. 3d DCA 1987)…iety based solely on prior record not a valid reason for departure). Again, we agree. In addition, the state correctly argues that the trial court’s finding that Myers can be rehabilitated is an improper reason for departure. Cf Stooksbury v. State, 495 So. 2d 845 (Fla. 3d DCA 1986) (conclusion that defendant is unsuitable candidate for probation is not clear and convincing reason to deviate from guidelines.) The trial court’s fourth reason, Myers’ stunted emotional development, taken alone, is invalid to sup…
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Jaggers v. State, 509 So. 2d 1165 (Fla. 1st DCA 1987)…gal status as follows; on parole, probation, community control; in custody serving sentence; escapees; fugitives; offenders in pretrial intervention or diversion programs. (Pre-trial release status, i.e., out on bail, is excluded, see Mize v. State, 495 So. 2d 845 (Fla. 3rd DCA 1986)). Conditional release from a mental institution is not listed. This fact supports our need for clarification as to whether being on conditional release from a mental institution at the time of the offense can be a valid factor fo…
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