THOMAS F. MACKEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1986-10-15
No. 85-1626
WALDEN, J., concurs., GLICKSTEIN, J., concurs specially with opinion.
495 So. 2d 916 Florida District Court of Appeal, Fourth District (1986) Caution
Cited by 3 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Appellant Mackey's probation was revoked after he committed serious crimes including sexual battery, kidnapping, robbery, and burglary while on probation. The trial court departed six cells above the presumptive sentencing guideline, but the appellate court found the stated reasons for departure were too vague and ambiguous to justify such a substantial departure, reversing and remanding for resentencing.


Holding

The court held that while probation violation alone justifies a one-cell upward departure without written reasons, departures greater than one cell require written reasons that are sufficiently specific and clear. The trial court's reasons—including the term "substantive" and vague language about the offenses being "cunningly pre-meditated" and evidencing "malice and complete disregard for the law"—were too ambiguous and vague to support the six-cell departure.


Headnotes

[1] A violation of probation is a sufficient basis for an upward departure to the next higher sentencing cell without requiring a written statement of reasons.

[2] Departure greater than a one-cell increase from the presumptive sentence requires reasons beyond the mere fact of probation violation.

Previewing 2 of 5 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

Key Quotes

“Violation of probation is a sufficient basis for upward departure to the next higher cell without requiring a written statement of reasons... Departure greater than a one cell increase is also permissible, but must be supported by reasons other than the fact of violation of probation.”

Establishes the legal standard: one-cell departure requires no written reasons, but greater departures need specific supporting reasons beyond probation violation alone.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Mackey was released on probation after serving a prison term for theft convictions. The day after his release, he committed sexual battery, kidnapping…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
HERSEY, Chief Judge.

HERSEY, Chief Judge.

The day after appellant was released on probation after serving a prison term for various convictions of theft, he committed the offenses at issue here, i.e., sexual battery, kidnapping, robbery and burglary. Appellant’s trial was interrupted by a declaration of mistrial; however, the trial court continued to take evidence on the charge of violation of probation, as a result of which appellant’s probation was revoked.

The sentencing guidelines scoresheet provided for a presumptive sentence of any non-state prison sanction. Departing from the guidelines, the court sentenced appellant to one year for fraudulent use of a credit card, one year for grand theft, and five years for theft of a credit card, all sentences to run consecutively. The total sentence represented a six cell departure from the presumptive sentence.

Violation of probation is a sufficient basis for upward departure to the next higher cell without requiring a written statement of reasons. Fla.R.Crim.P. 3.701d.l4. Departure greater than a one cell increase is also permissible, but must be supported by reasons other than the fact of violation of probation. Rodriguez v. State, 464 So. 2d 638 (Fla. 3d DCA 1985). See also Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986); Proctor v. State, 480 So. 2d 160 (Fla. 1st DCA 1985); Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985).

The court gave the following as “reasons for departure” in sentencing Mackey:

The violations were substantive: i.e., armed sexual battery; armed kidnapping; armed robbery; and burglary (dwelling) — the offenses were cunningly pre-meditated and evidenced malice and complete disregard for the law and probation conditions — protection of society.

While the record may support a departure of more than one cell, the stated reasons are not sufficiently specific to do so. The term “substantive” used in this context is at least ambiguous, and the remainder of the statement is simply too vague to permit analysis of specific bases for departure.

While circumstances forming the basis for revocation of probation may constitute valid reasons for departure, Rodriguez, 464 So. 2d at 638, 639, those circumstances must be translated by the trial court into a written statement containing reasons that are supportive of departure. A reason, such as “no pretense of moral or legal justification for the offense,” which has been rejected as a valid basis for departure in another context (see Burch v. State, 462 So. 2d 548 (Fla. 1st DCA), affirmed, 476 So. 2d 663 (Fla.1985)), is equally objectionable as a reason for departure in the violation of probation context.

We reverse the sentence and remand for resentencing to permit the trial court either to make a more explicit statement of reasons to justify the original departure sentence or to resentence the appellant with no more than a one cell upward departure from the presumptive guidelines sentence.

REVERSED AND REMANDED.

WALDEN, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

Concurrence
GLICKSTEIN, Judge,

GLICKSTEIN, Judge,

concurring specialty-

I concur in the result, but would say that some of what the trial court wrote adequately translates stated circumstances into valid reasons for departure. Albeit more explicitly stated reasons could save bench and bar a great amount of time, I appreciate that trial courts often must work hurriedly because of a huge workload. It is not necessary to perceive the stated reasons for departure as four in number, as appellant asserts. If, rather, we regard the writing as merely “stream of consciousness,” it is not farfetched to accept as adequate and valid the first part of the stated reasons. It may be read as saying the departure was occasioned by appellant’s malice and complete disregard for the law, which were evidenced by his cunningly premeditated substantive offenses, namely armed sexual battery, armed kidnapping, armed robbery and burglary of a dwelling. It seems clear the word “substantive” was used to characterize appellant’s crimes in contradistinction to more formal probation violations, such as neglecting to report to one’s probation officer as required. Read this way, the statement shows how the circumstances of the probation revocation also justify a sentencing departure.

I agree, however, that the phrase “protection of society” is at best vague, and that “complete disregard for ... probation conditions” presents an invalid reason for departure. Unable to determine that the departure was unaffected by the invalid reason or reasons, we must reverse and remand for the purposes set forth by the majority. See Albritton v. State, 476 So. 2d 158 (Fla.1985).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Smith v. State, 510 So. 2d 308 (Fla. 4th DCA 1986)
    …se reasons have been found to justify sentence departures. Had the trial court stated the reasons as the state has, they would constitute clear and convincing reasons for departure from the guidelines sentence. However, much as in Mackey v. State, 495 So. 2d 916 (Fla. 4th DCA 1986), we perceive the trial court’s purported written statement of departure reasons as merely a recitation of the circumstances forming the bases for departure, rather than sufficiently stated clear and convincing reasons. It is poss…
  • Saldana v. State, 510 So. 2d 1238 (Fla. 3d DCA 1987)
    …thing more than an “ordinary” violation which does not justify any departure beyond the one cell increase automatically authorized by Florida Rule of Criminal Procedure 3.701(d)(14). See State v. Pentaude, 500 So. 2d 526 (Fla.1987); Mackey v. State, 495 So. 2d 916 (Fla. 4th DCA 1986); compare Walker v. State, 496 So. 2d 220 (Fla. 3d DCA 1986) (violation involving threats to victim 74 days after commencement of term); Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986) (violation within one month of probation o…
  • Barnes v. State, 519 So. 2d 1112 (Fla. 4th DCA 1988)
    …eparture in aggravation that exceeds the guidelines by six months is unlawful and must be reversed. A departure of more than one cell increase must be supported by written reasons other than that it is upon a violation of probation. Mackey v. State, 495 So. 2d 916 (Fla. 4th DCA 1986). Reversal for resentencing within the guidelines recommended range of 12 to 30 months is required. The appropriate appellate remedy when all the written reasons given by the trial judge for departure are invalid is to reverse fo…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw