THOMAS RAGO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1986-12-03
No. 85-2631
SCHOONOVER, J., concurs., RYDER, J., specially concurring.
498 So. 2d 584 Florida District Court of Appeal, Second District (1986) Positive Treatment
Cited by 8 cases

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Synopsis

Thomas Rago was convicted of aggravated assault and two misdemeanors and sentenced to five years on the felony charge. On appeal, the Second District Court of Appeal affirmed the convictions but vacated the sentence and remanded for resentencing, finding the trial court's reasons for departing from guideline sentencing were insufficient and that certain costs were imposed in violation of constitutional and statutory protections.


Holding

The trial court erred by departing from guideline sentencing based on reasons that were either unsupported by the record or constituted inherent elements of the crime. The court also erred by imposing costs against an insolvent defendant without proper notice and opportunity to object, and by retroactively applying a statute that violated ex post facto provisions.


Headnotes

[1] A trial court's stated reason for departing from a recommended guideline sentence must be specific and supported by the record to be considered a clear and convincing rea…

[2] The inherent danger and confrontation of an aggravated assault charge cannot serve as a basis for departing from a recommended guideline sentence.

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Key Quotes

“the trial judge's statement that the defendant 'was only recently released from prison when he committed offenses for which he is now being sentenced' is not specific as to detail and is not supported by the record. Therefore, it does not meet the requirement of being a 'clear and convincing reason' to support departure.”

Establishes the standard for departing from guideline sentences and how the trial court failed to meet it.

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Facts & Procedural History

Rago was convicted of aggravated assault (a felony), petit theft, and loitering and prowling. The victim of the aggravated assault was a law enforceme…

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Opinion of the Court
SCHEB, Acting Chief Judge.

SCHEB, Acting Chief Judge.

Defendant Thomas Rago was convicted and sentenced for the commission of three offenses. On appeal he raises four points. We find merit only to his contentions that the trial judge erred by: (1) departing from the recommended guideline sentence; and (2) imposing costs against him.

The defendant was convicted of aggravated assault, a felony, and two misdemeanors, petit theft and loitering and prowling. The trial court departed from the recommended guideline sentence of “community control or 12-30 months’ incarceration” and sentenced him to five years on the felony conviction of aggravated assault and to time served on the two misdemeanor charges. The court gave the following reasons for departure:

1. In 1980, the defendant committed the offenses of burglary of a dwelling and grand theft and was placed on probation. He violated his probation and was then sentenced to the Department of Corrections for a period of thirty months on each count. He was only recently released from prison when he committed. offenses for which he is now being sentenced. The timing of these new offenses coupled with the fact that he again committed a theft discloses a recalcitrant and non-rehabilitative attitude justifying a departure.

2. The victim of the aggravated assault with a ten inch knife was a law enforcement officer who was required to draw his revolver as the assault was being committed. The totality of the circumstances created a confrontational, dangerous environment involving a substantial risk of serious injury or possible death.

The court’s first reason concerning timing of offenses has been held to be a valid reason for departure when supported by the record. Fleming v. State, 456 So. 2d 1300 (Fla. 2d DCA 1984); see Simmons v. State, 496 So. 2d 911 (Fla. 2d DCA 1986). Here, however, the trial judge’s statement that the defendant “was only recently released from prison when he committed offenses for which he is now being sentenced” is not specific as to detail and is not supported by the record. Therefore, it does not meet the requirement of being a “clear and convincing reason” to support departure. State v. Mischler, 488 So. 2d 523 (Fla.1986).

The court’s second reason is also invalid. To begin with, the record reveals the defendant did not know that the victim of his assault was a police officer because the officer was not wearing a uniform or otherwise identified as a police officer. When the deputy identified himself as a police officer, the defendant dropped the knife he was holding. Furthermore, confrontation and danger are inherent components of the crime of aggravated assault and, thus, cannot be used to justify a departure. State v. Mischler. We agree with the defendant’s contention that the trial court erred by imposing costs of $224.50 against him. The defendant had been adjudged insolvent. Therefore, the court’s imposition of $20 pursuant to section 960.20, Florida Statutes (1985), $2.50 pursuant to section 943.25(4), Florida Statutes (1985), and $2.00 pursuant to section 943.25(8), Florida Statutes (1985), must be stricken since defendant was not given notice of the assessment or an opportunity to object to it. Jenkins v. State, 444 So. 2d 947 (Fla.1984); Foust v. State, 478 So. 2d 111 (Fla. 2d DCA 1985); Murph v. State, 445 So. 2d 1112 (Fla. 2d DCA 1984).

We also find error in the court’s imposition of $200 additional court costs pursuant to section 27.3455, Florida Stat utes (1985) which became effective July 1, 1985. Since the defendant’s crimes were committed on May 24, 1985, imposition of these additional costs violated the ex post facto provisions of the Constitution of the United States and of the State of Florida. Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986); Hooks v. State, 498 So. 2d 586, (Fla. 2d DCA 1986).

Accordingly, we affirm the defendant’s convictions but we vacate his sentence on the aggravated assault charge and remand for resentencing on that count. If the trial court again chooses to depart on the “timing” aspect of the offenses it must show that it would have originally departed solely on this ground and furnish documentation from the record in detail to support the departure. See Albritton v. State, 476 So. 2d 158 (Fla.1985). We also vacate the $200 in costs imposed pursuant to section 27.3455, Florida Statutes (1985). We strike the other costs totaling $24.50 without prejudice to the state petitioning to assess those costs in compliance with Jenkins.

SCHOONOVER, J., concurs.

RYDER, J., specially concurring.

Concurrence
RYDER, Judge,

RYDER, Judge,

specially concurring.

I concur with the result of this panel, but incorporate by reference my specially concurring opinion in Stone v. State, 500 So. 2d 572 (Fla. 2d DCA 1986).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Knight v. State, 501 So. 2d 150 (Fla. 1st DCA 1987)
    ….” Such is a misreading of Corum. We did not hold that an order separate and apart from the judge’s scoresheet notations was necessary. We merely held that the judge’s sparse scoresheet notes were insufficient in that case. . Compare Rago v. State, 498 So. 2d 584 (Fla. 2nd DCA 1986) (“timing of offenses”).…
  • Dixon v. State, 513 So. 2d 1378 (Fla. 3d DCA 1987)
    …ent is an essential element of all the offenses for which the defendant stands convicted, these reasons cannot constitute a sufficient basis for a sentencing guidelines departure. See State v. Mischler, 488 So. 2d 523, 525 (Fla.1986); Rago v. State, 498 So. 2d 584, 585 (Fla. 2d DCA 1986); Knowlton v. State, 466 So. 2d 278, 280 (Fla. 4th DCA), rev. denied, 476 So. 2d 675 (Fla.1985); Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984), approved, 476 So. 2d 165 (Fla.1985). The sentences under review are reversed…
  • Monroe v. State, 502 So. 2d 981 (Fla. 2d DCA 1987)
    …ecome effective until July 1, 1985. Therefore, the imposition of these costs violated the ex post facto provisions of the Constitutions of the United States and the State of Florida. Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986); Bago v. State, 498 So. 2d 584 (Fla. 2d DCA 1986). Accordingly, we reverse the trial court’s imposition of these costs. Furthermore, as we did in Bowman, we again certify this question to the Supreme Court of Florida as a question of great public importance. HALL, J., concurs…

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