ROBERT ALLEN SELLERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
The court held that a trial court is not required to give notice of its intention to depart from sentencing guidelines, but departure cannot be based on arrests without convictions.
[1] A trial court's restriction of a witness's cross-examination is affirmed absent an abuse of discretion.
[2] A trial court is not required to provide notice of its intention to depart from sentencing guidelines.
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 intelligenceAppellant was convicted of grand theft and sentenced outside the guidelines. The trial court relied on prior arrests without convictions as a reason f…
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.
Explore caselaw by topic → Browse Sentencing Guidelines Departure cases and more on FLexlaw
PER CURIAM.
This cause is before us on appeal from a judgment and sentence adjudicating appellant guilty of grand theft and sentencing appellant outside the guidelines to three years of imprisonment. Appellant has raised three issues; we affirm in part and reverse in part.
First, we affirm the trial court’s decision to restrict the cross-examination of a witness, as no abuse of the trial court’s discretion has been demonstrated. See Powe v. State, 413 So. 2d 1272 (Fla. 1st DCA 1982).
Next, relying on Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984), we hold that the trial court is not required to give appellant notice of its intention to depart from the sentencing guidelines. Further, contrary to appellant’s assertion, we do not find Flemmings v. State, 476 So. 2d 292 (Fla. 3d DCA 1986), in conflict with our position. Specifically, we agree that “it seems clear that abuse of discretion is present where the court considers factors which are irrelevant or unreliable.” Id. at 293. Stated alternatively, this court requires that the reasons a trial court states for departing from the recommended guidelines sentence must be supported by evidence in the record. See Battles v. State, 483 So. 2d 849 (Fla. 1st DCA 1986). Accordingly, we recognize that, in some circumstances, a factfinding sentencing proceeding may be required.
Finally, we reverse and remand for resentencing. In departing from the recommended guidelines range, the trial court impermissibly relied on the fact that appellant had been “arrested 29 times since 1973.” Rule 3.701(d)(ll), Florida Rules of Criminal Procedure, prohibits a departure from the recommended guidelines based on prior arrests without convictions. In this case, ten of the 29 arrests are not supported by convictions. Further, appellant’s convictions were already factored into the recommended guidelines sentence and cannot support departure. See State v. Mischler, 488 So. 2d 523 (Fla.1986). Accordingly, we affirm in part, reverse in part, and remand for resentencing. JOANOS and ZEHMER, JJ„ and VICTOR M. CAWTHON, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Lumpkin v. State, 510 So. 2d 1164 (Fla. 3d DCA 1987)…d. Thompson v. State, 493 So. 2d 71 (Fla. 1st DCA 1986); Fla.R.Crim.P. 3.701(d)(11); cf. Weems v. State, 469 So. 2d 128 (Fla.1985) (prior arrests without convictions are not a valid reason for departing from sentencing guidelines): Sellers v. State, 499 So. 2d 43 (Fla. 1st DCA 1986) (same); Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984) (same). Since Lump-kin was not charged with robbery against the children, the children must be considered as witnesses rather than victims in determining whether their a…
-
Clark v. State, 572 So. 2d 929 (Fla. 5th DCA 1990)…iven by the trial judge was clearly invalid: the unrelated .pending criminal cases. The guidelines prohibit use of arrests and charges of criminal activity which have not culminated in convictions6 for scoring or departure reasons. Sellers v. State, 499 So. 2d 43, 44 (Fla. 1st DCA 1986). The second reason given by the trial court might be legally sufficient, however. Basically, a harsher punishment was imposed because the victim of the burglary and theft was an active police officer engaged in his police du…
-
Williams v. State, 586 So. 2d 1081 (Fla. 1st DCA 1991)…to the maximum sentence permitted by law.” Since there is no evidence in the record to support that conclusion, we reverse and remand for sentencing within the guidelines. See section 921.001(5), Florida Statutes (1987); see also, Sellers v. State, 499 So. 2d 43 (Fla. 1st DCA 1986). We also note that a defendant’s “refusal to ‘adhere to the requirements of alternate sentencing’ ... is insufficient by itself to justify departure.” Brown v. State, 488 So. 2d 641, 642 (Fla. 2d DCA [*1082] 1986). Further, a de…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984)
- Powe v. State, 413 So. 2d 1272 (Fla. 1st DCA 1982)
- Flemmings v. State, 476 So. 2d 292 (Fla. 3d DCA 1985)
- Battles v. State, 483 So. 2d 849 (Fla. 1st DCA 1986)