STATE OF FLORIDA, APPELLANT,
v.
OSCAR BAKER, JR., APPELLEE
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The State appeals a sentence for escape that fell substantially below the Florida sentencing guidelines. The court reverses, holding that the trial court's reasons for downward departure—the judge's personal experience and the lack of violence—are insufficient under Florida sentencing law to justify a sentence less than half the guideline range.
Neither reason constitutes a clear and convincing justification for downward departure. A judge's personal belief that the guideline sentence is excessive undermines sentencing uniformity and is improper. The absence of violence is also an invalid basis for departure because violence factors are already contemplated within the guidelines themselves.
[1] A trial court may not depart from sentencing guidelines based solely on the judge's personal experience or perception that the recommended sentence is excessive.
[2] A trial court's disagreement with the sentencing guidelines commission is not a sufficient reason for departure.
Previewing 2 of 4 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“it is improper to depart based on the trial court's perception that the recommended sentence under the guidelines is not commensurate with the seriousness of the crime. This would undermine the guidelines' goal of establishing uniformity in sentencing.”
Establishes that judicial disagreement with guideline ranges is not a valid basis for downward departure.
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Join FLexlaw to unlock all legal intelligenceOscar Baker, Jr. escaped from a work release center and was apprehended shortly thereafter. The sentencing guidelines recommended 4.5 to 5.5 years inc…
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JOANOS, Judge.
The State appeals from the sentence imposed on Oscar Baker, Jr., for escape and asserts that the trial court erred in under-departing from the guidelines. We agree and reverse. Baker escaped from a work release center and was apprehended shortly thereafter. The sentencing guidelines recommendation for escape was 4V2 to 5V2 years incarceration. The trial court sentenced Baker to 24 months incarceration, less than half of the range recommended by the guidelines. The trial court supplied the following written reasons for its departure:
(1) Based on the trial court’s experience the guidelines seemed excessive for a walk away escape from a work release program,
(2) there was no violence or danger to anyone during the escape.
We find that neither of the trial court’s statements regarding departure constitutes a clear and convincing reason warranting mitigation of the sentence.
As to the first reason, “based on the judge’s prior experience”, though the guidelines aren’t meant to usurp all of the judge's discretion, it is improper to depart based on the trial court’s perception that the recommended sentence under the guidelines is not commensurate with the seriousness of the crime. This would undermine the guidelines’ goal of establishing uniformity in sentencing. Williams v. State, 492 So. 2d 1308 (Fla.1986).
In the instant case the trial judge implied that defendant’s act of escape was not a serious one, warranting 472 to 572 years incarceration. In State v. Davis, 464 So. 2d 195 (Fla. 3rd DCA 1985), the trial court expressed that defendant’s attempted burglary of a car was too insignificant to warrant a year in jail and would warrant at most 90 days in jail. The Third District Court of Appeal ruled that the de minimis nature of the crime was an insufficient basis for deviation from the guidelines. When faced with a judge’s similar dissatisfaction with a guidelines recommended sentence, the Florida Supreme Court stated, “In effect this reason reflects a trial judge’s disagreement with the sentencing guidelines commission and is not a sufficient reason for departure.” Scurry v. State, 489 So. 2d 25, 29 (Fla.1986).
The trial court’s second reason for departure, lack of violence or injury is also invalid. In State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985), the Third District Court held that the trial court’s reason for downward departure, that there was no violence involved in defendant’s crime of possession of cocaine, was invalid as the violence factor had already been contemplated by the guidelines themselves. Caride at 1363. Although a review of the case law reveals that an increasing number of reasons for downward departure are being upheld, i.e., (defendant’s mild retardation) State v. Villalovo, 481 So. 2d 1303 (Fla. 3d DCA 1986); (the small amount of contraband involved) Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985), rev. denied 488 So. 2d 830 (Fla.1986); (defendant’s youth) State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986), we agree with the state’s position that the circumstance that defendant completed his escape from a work release center without perpetrating violence or injury does not justify a lighter sentence of incarceration by two years, a sentence less than half of what the guidelines recommended. Victim injury is a factor which is scored on the guidelines sheet and was considered properly as a zero in the case at bar. Accordingly we reverse the sentence and remand the cause to the trial court to re- sentence Baker within the recommended range provided by the guidelines.
Reversed and remanded for resentencing.
THOMPSON and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005)…s the trial court’s sensibilities. “[I]t is improper [for a trial court] to depart based on the trial' court’s perception that the [lowest permissible] sentence under the [Code] is not commensurate with the seriousness of the crime.” State v. Baker, 498 So. 2d 1031, 1032 (Fla. 1st DCA 1986); see also State v. Lerman, 624 So. 2d 849, 849 (Fla. 2d DCA 1993) (“We agree with the state that the [downward departure] reason reflects the trial court’s disagreement with the guidelines and is invalid.”). When imposing a…
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State v. Devine, 512 So. 2d 1163 (Fla. 4th DCA 1987)…the sentencing range, even if the court is satisfied that the result is disproportionate in relation to the nature of the crime committed. See Williams v. State, 492 So. 2d 1308 (Fla.1986); Scurry v. State, 489 So. 2d 25 (Fla.1986); State v. Baker, 498 So. 2d 1031 (Fla. 1st DCA 1986); Whitfield v. State, 490 So. 2d 1358 (Fla. 5th DCA 1986); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985); State v. Davis, 464 So. 2d 195 (Fla. 3d DCA 1985). Thus, this reason was an improper basis for departure. In this ca…
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Fryson v. State, 506 So. 2d 1117 (Fla. 1st DCA 1987)…recommended sentence under the guidelines is not commensurate with the seriousness of the crime, since this would undermine the guidelines’ goal of establishing uniformity in sentencing. Williams v. State, 492 So. 2d 1308 (Fla.1986); State v. Baker, 498 So. 2d 1031 (Fla. 1st DCA 1986). Since only two of the six reasons are arguably valid, ordinarily under Albrit-ton v. State, 476 So. 2d 158 (Fla. 1985), we would have probably reversed and remanded for resentencing. However, the trial court indicated essential…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985)
- State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985)
- State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986)
- State v. Villalovo, 481 So. 2d 1303 (Fla. 3d DCA 1986)
- State v. Davis, 464 So. 2d 195 (Fla. 3d DCA 1985)