BOBBY MYRICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bobby Myrick appeals his sentencing for breaking and entering with intent to commit grand larceny and uttering forged instruments. The Florida appellate court reverses and remands because the trial court's written reasons for departing from sentencing guidelines included both permissible and impermissible reasons, making it impossible to determine if the invalid reasons affected the sentence.
The court reverses and remands for resentencing because the trial court's departure reasons included impermissible factors (violation of probation beyond the one-cell allowance, prior offenses that should have been factored into the scoresheet, and offenses without conviction), and the court cannot determine whether these invalid reasons affected the departure sentence.
[1] A trial court's written reasons for departing from sentencing guidelines must contain only permissible grounds for departure.
[2] A violation of probation is an invalid reason to enhance a sentence beyond the one-cell increase permitted by rule.
Previewing 2 of 6 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“Appellant's violation of probation, however, is an invalid reason to enhance appellant's sentence more than the one cell permitted by Florida Rule of Criminal Procedure 3.701(d)(14).”
Establishes that probation violation alone cannot justify departure beyond the one-cell enhancement allowed by rule.
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Join FLexlaw to unlock all legal intelligenceMyrick was convicted of one count of breaking and entering with intent to commit grand larceny and two counts of uttering a forged instrument. His pro…
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PER CURIAM.
In these consolidated sentencing guidelines cases, the appellant, Bobby Myrick, appeals the sentences imposed by the trial court. We find that the trial court’s written reasons for departing from the guidelines when sentencing the appellant include both permissible and impermissible reasons, and we, therefore, reverse and remand for resentencing.
The underlying offenses in this case are one count of breaking and entering with intent to commit grand larceny and two counts of uttering a forged instrument. When appellant’s probation for these offenses was revoked in 1984, he elected guideline sentencing. The trial court prepared a written statement containing reasons for departure and sentenced the appellant to serve three consecutive five-year terms in the state prison. The trial court imposed these sentences without first preparing a guidelines scoresheet. Upon appeal of that sentencing, the case was reversed and remanded for preparation of a guidelines scoresheet followed by resentencing. See Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984).
The sentencing guidelines scoresheet which was ultimately prepared reflected a sentence range of community control or twelve to thirty months incarceration. With the one cell enhancement allowed for violation of probation, the reflected range was two-and-one-half to three-and-one-half years of incarceration. At the resentencing hearing, however, the trial court again departed from the guidelines and once again sentenced appellant to serve three consecutive five-year sentences. The same written reasons for departure that were used in the original sentencing were used at appellant’s resentencing.
The written statement reflected that the trial judge based his decision to sentence the appellant outside the sentencing guidelines on the appellant’s violation of his probation as well as on appellant's criminal history. Appellant’s violation of probation, however, is an invalid reason to enhance appellant’s sentence more than the one cell permitted by Florida Rule of Criminal Procedure' 3.701(d)(14). See Wigfals v. State, 480 So. 2d 259 (Fla. 2d DCA 1986). Furthermore, appellant’s criminal history included both valid and invalid reasons for departure. For instance, the juvenile offenses appellant committed more than three years prior to the commission of the primary offense, Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984), aff'd, 469 So. 2d 128 (Fla.1985), is a valid reason for departure. On the other hand, the offenses which would have been factored into the scoresheet in order to arrive at a presumptive sentence, Hendrix v. State, 475 So. 2d 1218 (Fla.1985), and the offenses for which no conviction had been obtained, see Fla.R. Crim.P. 3.701(d)(ll); Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985), are impermissible reasons for departure.
Because we are unable to conclude that the trial court, in considering appellant’s prior criminal history, only intended to include the permissible reasons for departure, we are not convinced beyond a reasonable doubt that the presence of the invalid reasons did not affect the departure sentence. Albritton v. State, 476 So. 2d 158 (Fla.1985). We, therefore, reverse and remand for resentencing. At resentencing, the court should either sentence appellant within the guidelines range or prepare a written statement containing only permissible reasons which justify its decision to sentence appellant outside the guidelines.
Reversed and remanded.
SCHEB, A.C.J., and RYDER and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morganti v. State, 515 So. 2d 364 (Fla. 4th DCA 1987)…PER CURIAM. We affirm the appellant’s conviction but reverse for resentencing. Whitehead v. State, 498 So. 2d 863 (Fla.1986). The defendant’s juvenile record may be a valid reason for departure. Myrick v. State, 497 So. 2d 728 (Fla. 2d DCA 1986); Riddle v. State, 488 So. 2d 903 (Fla. 5th DCA 1986). However, the state has not shown beyond a reasonable doubt that the sentence would have been the same without the impermissible reasons. Griffis v. State, 509 So. 2d 1104 (Fla.…
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State v. Taylor, 511 So. 2d 753 (Fla. 2d DCA 1987)…plead no contest, accepting the trial judges’ offer of a sentence of two years community control. The state objected. The first error was that no scoresheet was prepared. Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984), rev’d. on other grounds, 497 So. 2d 728 (Fla.1986). It appears that the trial judge’s sentence was a downward departure from the recommended guidelines sentence which would have been reflected if a scoresheet had been prepared. There were no written reasons prepared to justify a downward…
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Patten v. State, 531 So. 2d 203 (Fla. 2d DCA 1988)…first reason contained in the resentencing order that “defendant absconded from his community control program” is not a valid ground to depart beyond the one cell bump permitted under the guidelines. See Fla.R. Crim.P. 3.701(d)(14); Myrick v. State, 497 So. 2d 728 (Fla. 2d DCA 1986). We perceive no inconsistency with our interpretation of Shull had the trial court on resentencing merely enhanced Patten’s sentence one cell from the original recommended sentence of “any nonstate prison sanction” under the abov…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984)
- Sherman v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984)
- Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985)
- Wigfals v. State, 480 So. 2d 259 (Fla. 2d DCA 1986)