RUSSELL SNELLING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1986-12-30
No. BL-276
SHIVERS and ZEHMER, JJ., concur.
500 So. 2d 328 Florida District Court of Appeal, First District (1986) Caution
Cited by 14 cases

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Holding

The court held that the trial court did not abuse its discretion in departing from the recommended sentencing guidelines because two of the three stated reasons for departure were clear and convincing.


Headnotes

[1] A crime spree, characterized by the timing and geographical concentration of offenses, can constitute a clear and convincing reason for departing from recommended sentenc…

[2] A defendant's continued commission of offenses after arrest and release on bond demonstrates a need for a greater sentence for the protection of the community and can be…

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Facts & Procedural History

Appellant was convicted of multiple theft-related felonies and received an enhanced sentence based on the trial court's departure from the recommended…

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Opinion of the Court
SMITH, Judge.

SMITH, Judge.

Appellant appeals his enhanced sentence for ten theft-related third degree felonies, alleging that the trial court abused its discretion in departing from the recommended sentencing guidelines range. We affirm.

Appellant pled nolo contendere to three counts of grand theft, four counts of fraudulent use of a credit card, two counts of forgery, and one count of uttering a forged instrument. A guidelines scoresheet was prepared indicating a total of 22 points and a recommended sentencing range of any nonstate prison sanction. The trial court imposed a sentence of three years incarceration to be followed by seven years probation. The court gave its reasons for departure in writing as follows:

1. The defendant engaged in a crime spree. He committed a tremendous number of thefts in a relatively short period of time and in a relatively centralized location of the community — the campus of FAMU and FSU.

2. The presumptive guidelines sentence is not commensurate with the seriousness of these offenses.

3. After the defendant had been arrested and became aware of the serious nature of these offenses, he was freed on bond and nevertheless continued to commit the same type of criminal offenses. This demonstrates that the greater sentence imposed is necessary for the protection of the community.

In addition to setting forth the above reasons, the trial court concluded its order with the following paragraph:

If one or more of the foregoing reasons are determined, upon appellate review, to be impermissible, this court would nevertheless depart from the presumptive guidelines sentence, based upon the remaining permissible reason or reasons, and impose the same sentence as pronounced.

We find the first reason for departure clear and convincing. On several occasions, this court has held that the timing of the crimes committed is a valid basis for departure from the recommended sentencing guidelines. Decker v. State, 482 So. 2d 511 (Fla. 1st DCA 1986); Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985); Smith v. State, 479 So. 2d 804 (Fla. 1st DCA 1985); Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984); Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984). In the instant case, appellant stole credit cards and personal checks which he used to obtain merchandise, services, and cash during an eleven-month period. The trial court included in its first reason for departure the geographical location of the crimes committed. We do not consider that this fact constitutes a separate reason for departure; rather, it serves to describe the crime spree itself.

The second reason for departure is invalid. Williams v. State, 492 So. 2d 1308 (Fla.1986); Scurry v. State, 489 So. 2d 25 (Fla.1986).

We find the third reason for departure clear and convincing. After the trial court had released appellant on his own recognizance, he committed two additional theft-related crimes. The sentencing guidelines simply do not take into account the circumstances surrounding the commission of these last two crimes or the time frame within which they were committed. This situation is analogous to those cases in which the defendant has a prior history of failed alternative treatment. See, for example, Simmons v. State, 483 So. 2d 530 (Fla. 1st DCA 1986); Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985), affirmed 480 So. 2d 639 (Fla.1985). Appellant’s conduct indicates that he would not be a good, candidate for a nonstate prison sanction, for if he would commit additional crimes while awaiting sentencing, he would do the same if a nonincarcerative sentence were imposed.

In summary, we hold that reasons numbered one and three are valid and affirm. The guidelines scoring simply does not take into account the pattern of conduct evidenced here, nor the appellant’s failure to remain a law-abiding citizen while released from jail on his own recognizance. The scoring is the same whether several offenses are part of the same transaction or are all separate and part of an overall criminal plan.

Since the trial court stated in its order that it would impose the same sentence if at least one of the reasons is valid, we certify the same question as was certified in Griffis v. State, 497 So. 2d 296 (Fla. 1st DCA 1986); and Reichman v. State, 497 So. 2d 293 (Fla. 1st DCA 1986). We find, however, notwithstanding the trial court’s above statement, that the beyond a reasonable doubt standard of appellate review for departure sentences mandated by Albritton v. State, 476 So. 2d 158 (Fla.1985), has been met.

The sentence imposed by the trial court is AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


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Citator

Cited By

  • Paschall v. State, 501 So. 2d 1370 (Fla. 2d DCA 1987)
    …parture. Under the facts of this case, however, it appears that the fact appellant committed some offenses while out on bond is tied to the “crime spree” rationale, and thus, cannot serve as an independent basis for departure. Cf. Snelling v. State, 500 So. 2d 328 (Fla. 1st DCA 1986) (trial court’s description of the geographical location of the offenses did not constitute separate reason for departure; rather, it served to describe crime spree itself). Discharging a firearm in two cases creating a danger to…
  • COX v. State, 508 So. 2d 1318 (Fla. 1st DCA 1987)
    …olving armed robberies and aggravated assaults using a firearm, to the “close proximity of the various crimes,” and to the fact that the defendant was out on bond for earlier crimes when some of his later crimes were committed. In Snelling v. State, 500 So. 2d 328 (Fla. 1st DCA 1986) this court approved the trial court’s “crime spree” rationale for departure where the defendant was convicted of ten separate crimes committed during an eleven month period in a confined geographical area. In Snelling, as in Pasc…
  • Leonel Campos v. State, 515 So. 2d 1358 (Fla. 4th DCA 1987)
    …this case were the result of a continuous episode rather than a series of similar offenses over a duration of days or even months, making it distinguishable from cases such as Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984); Snelling v. State, 500 So. 2d 328 (Fla. 1st DCA 1986); Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985); and Paschall v. State, 501 So. 2d 1370 (Fla. 2d DCA 1987). We therefore conclude that the trial court has stated one valid reason for departure and a second reason which is inva…

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