STATE OF FLORIDA, APPELLANT,
v.
TERRANCE PETERS, APPELLEE
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The court held that a sentence departure based on impermissible considerations must be vacated, especially when it's unclear if the same sentence would have been imposed without them.
[1] A court's specification of reasons for departing from sentencing guidelines must be based on objective factual criteria and cannot be conclusory.
[2] Concerns regarding the social cost of imprisonment do not justify a departure from sentencing guidelines recommendations.
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Join FLexlaw to unlock all legal intelligenceThe state sought review of a sentencing order where the court departed from the recommended guidelines. The reasons given included appellee's characte…
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WENTWORTH, Judge.
The state seeks review of an order by which a sentence was imposed below that recommended by the Fla.R.Crim.P. 3.701 sentencing guidelines. We find that the court’s specification of reasons for this departure from the guidelines recommendation is permeated with impermissible considerations, and we therefore vacate appel-lee’s sentence.
In departing from the recommended guidelines sentence the court indicated that appellee’s character, habits, mentality, propensities and activities suggest that he is not a risk to the community and is unlikely to commit another crime. However, the court did not provide any further explanation as to these particular attributes. This conclusory statement does not satisfy the requirement of a written specification of objective factual criteria. The court also noted a concern for the social cost of imprisonment; this consideration does not justify a departure from the guidelines recommendation. Cf., State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985). And appellee concedes that his expressions of remorse, as referenced by the court, likewise do not warrant a departure from the guidelines recommendation.
The court stated that appellee’s offense involved less victim injury than is characteristic for the crime. But appellee was sentenced for robbery with a deadly weapon, an offense which does not necessitate victim injury. The record does not fully support the court’s conclusion, and furthermore victim injury is a factor in the guidelines computations.
The court also referenced appellee’s age in connection with his prior record, which is prohibited by State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986).
Because the court’s written specification of reasons for departure from the recommended guidelines sentence is permeated with impermissible considerations, and it is not clear beyond a reasonable doubt that the court would have imposed the same sentence in the absence of such invalid considerations, we vacate appellee’s sentence and remand the cause for resentencing.
BOOTH, C.J., and ZEHMER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988)…over defendant invalid reason for downward departure); State v. Daughtry, 505 So. 2d 537 (Fla. 4th DCA 1987) (fact that departure sentence keeps defendant longer under judicial control would not be acceptable reason for departure); State v. Peters, 500 So. 2d 704 (Fla. 1st DCA 1987) (concern for social cost of incarceration not valid reason for departure sentence). See also Fla.R.Crim.P. 3.701(b)(2) (“The primary purpose of sentencing is to punish the offender. Rehabilitation and other traditional considerat…
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State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987)…guidelines. See Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985); Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984), approved, 476 So. 2d 161 (Fla.1985) (ground 1); State v. Bentley, 475 So. 2d 255 (Fla. 5th DCA 1985)(ground 3); State v. Peters, 500 So. 2d 704 (Fla. 1st DCA 1987) (ground 4); State v. Wright, 473 So. 2d 268, 269 (Fla. 1st DCA 1985), review denied, 484 So. 2d 10 (Fla. 1986) (ground 5).1 While the amount of cocaine would serve as a conceivable basis for the downward departure as to that char…
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State v. Darron K. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998)…s does say that remorse alone is a sufficient mitigating factor; although, remorse in that case was accompanied by other valid mitigating factors. Prior to Sachs, remorse alone was an insufficient basis for a downward departure. See State v. Peters, 500 So. 2d 704 (Fla. 1st DCA 1987); State v. Myers, 515 So. 2d 333 (Fla. 3d DCA 1987). In this instance, even if remorse alone can support a downward departure, the record fails to contain any evidence of such as required by Sachs. Here, Whiting merely uttered a b…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985)
- State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986)