VERNON BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vernon Brown appeals his guidelines departure sentence of 8 years imprisonment, which exceeded the recommended 4.5-5.5 years. The Florida District Court of Appeal, Fifth District, vacates the sentence because the trial judge based the departure solely on Brown's habitual offender status without making specific findings of fact required by statute to justify an enhanced sentence.
A trial court may not base a guidelines departure sentence on a habitual offender designation without making specific findings of fact, either in open court or in writing, that demonstrate on their face why an extended term is necessary to protect the public. A conclusory statement alone is insufficient, and prior criminal record cannot be used to support a departure since it is already factored into the presumptive guidelines sentence.
[1] A trial court must make specific findings of fact, either in open court or in writing, to support a determination that an extended term sentence is necessary to protect t…
[2] A conclusory statement that an extended sentence is necessary for public protection, without supporting factual findings, is insufficient to satisfy statutory requirement…
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Join FLexlaw to unlock all legal intelligence“A conclusory statement that the extended sentence is necessary for the protection of the public, without findings of fact to support that conclusion, does not satisfy the requirements of section 775.084(3)(d).”
Establishes that conclusory statements are insufficient; specific factual findings are required to justify departure sentences.
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Join FLexlaw to unlock all legal intelligenceBrown was convicted of a crime for which the guidelines recommended a sentence of 4.5 to 5.5 years imprisonment. The trial court departed from this re…
The full statement of facts, procedural history, and disposition for this case are member content.
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ORFINGER, Judge.
Defendant appeals from a guidelines departure sentence. Because the trial judge based the departure on an impermissible reason, we vacate the sentence and remand for resentencing.
The trial court departed from the recommended guidelines sentence of 4V2 to 5V2 years’ imprisonment and ordered that defendant be incarcerated for 8 years for the sole reason that the defendant was determined to be an habitual offender under section 775.084, Florida Statutes (1985). The habitual offender finding is flawed because the trial court did not make specific findings of fact, either in open court or in writing, which showed on their face that an extended term is necessary to protect the public from further criminal activity of the defendant. Walker v. State, 462 So. 2d 452 (Fla.1985); Eutsey v. State, 383 So. 2d 219 (Fla.1980). A conclusory statement that the extended sentence is necessary for the protection of the public, without findings of fact to support that conclusion, does not satisfy the requirements of section 775.-084(3)(d). Specific findings of fact are necessary for meaningful appellate review of this type of sentencing decision. Walker, 462 So. 2d at 454; Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986); Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984).
The trial court’s conclusion in this case that an enhanced sentence was necessary for the protection of the public was based solely on defendant’s prior record. However, the defendant’s prior criminal record and current conviction are already factored into the presumptive guidelines sentence, and thus may not be used again to support a departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986); Teague v. State, 491 So. 2d 296 (Fla. 5th DCA 1986). There must be other and independent clear and convincing written reasons to support a departure. Vicknair; Watson v. State, supra. Contra Hale v. State, 490 So. 2d 122 (Fla. 2d DCA 1986); Ferguson v. State, 481 So. 2d 924 (Fla. 2d DCA 1985); Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986).
The sentence is vacated and the cause is remanded for resentencing.
DAUKSCH and COBB, JJ., concur.
PER CURIAM.
The motion for rehearing is denied. See Whitehead v. State, 498 So. 2d 863 (Fla.1986).
DAUKSCH, ORFINGER and COBB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Donaldson v. State, 519 So. 2d 737 (Fla. 3d DCA 1988)…ng the procedures set forth in section 775.084, Florida Statutes' (1985). He points to the trial court’s failure to issue findings that the extended sentence was necessary for the protection of the public. His argument has merit. See Brown v. State, 497 So. 2d 887 (Fla. 5th DGA 1986); Little v. State, 440 So. 2d 603 (Fla. 3d DCA 1983). Accordingly, we vacate Donaldson’s sentence and remand for resentencing. Donaldson is entitled to be present at resentencing. See Griffin v. State, 517 So. 2d 669 (Fla.1987); S…
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Davis v. State, 557 So. 2d 60 (Fla. 3d DCA 1989)…ailed to make an express finding that the defendant constitutes a threat to the community as required for sentence enhancement under section 775.084, Florida Statutes (1987). See Donaldson v. State, 519 So. 2d 737 (Fla. 3d DCA 1988); Brown v. State, 497 So. 2d 887 (Fla. 5th DCA 1986); Little v. State, 440 So. 2d 603 (Fla. 3d DCA 1983). Second, the trial judge failed to provide independent written reasons for the departure sentence ordered. See Watts v. State, 525 So. 2d 992 (Fla. 2d DCA 1988). Accordingly,…
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Forrest v. State, 513 So. 2d 151 (Fla. 1st DCA 1987)…lony Offenders is necessary in this instance for the protection of the public from further criminal activity by the defendant; This is an insufficient finding, as all it contains is a vague reference to appellant’s prior record. See Brown v. State, 497 So. 2d 887, 888 (Fla. 5th DCA 1986) (“A conclusory statement that the extended sentence is necessary for the protection of the public, without findings of fact to support that conclusion does not satisfy section 775.084(3)(d).”); Rosemond, v. State, 489 So. 2d…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Bennie Lee Walker v. State, 462 So. 2d 452 (Fla. 1985)
- Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984)
- Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986)
- Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986)
- Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986)
- Elton Hale v. State, 490 So. 2d 122 (Fla. 2d DCA 1986)
- Vera v. State, 481 So. 2d 924 (Fla. 4th DCA 1985)