JAMES B. KEARSE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal affirmed Kearse's conviction but reversed and remanded for resentencing because the record failed to reflect that Kearse made a clear, affirmative choice to be sentenced under the sentencing guidelines, and the trial court's stated reason for departure was invalid.
The court held that the record failed to demonstrate Kearse made a clear affirmative choice to be sentenced under the guidelines, requiring resentencing. The trial court's stated reason for departure ('major participant' and inducement) was invalid as a matter of law, and even if inducement were valid, no evidence supported that Kearse induced another to participate. The inclusion of uncounseled misdemeanor convictions was proper because the record did not indicate Kearse was unrepresented or had not waived counsel.
[1] A defendant's affirmative selection to be sentenced under the sentencing guidelines must be clearly reflected in the record; neither the defendant's silence nor counsel's…
[2] A trial court may not depart from recommended sentencing guidelines based on a defendant being a "major participant" in a crime, particularly when the alleged inducement…
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Join FLexlaw to unlock all legal intelligence“the record fails to reflect that Kearse made a "clear choice" to be sentenced under the sentencing guidelines”
Establishes the primary ground for reversal—lack of affirmative selection to sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceKearse was convicted and sentenced with a departure from the recommended sentencing guidelines. At sentencing, both defense counsel and the prosecutor…
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SHIVERS, Judge.
In State v. Kearse, 491 So. 2d 1141 (Fla.1986), the supreme court quashed this court’s reversal of appellant’s conviction in Kearse v. State, 464 So. 2d 202 (Fla. 1st DCA 1985), and remanded with instructions that this court affirm Kearse’s conviction and consider the sentencing issues originally raised on appeal. In his initial brief, Kearse attacked the trial court’s departure sentence on three grounds: (a) that the record does not reflect an affirmative selection to be sentenced under the guidelines; (b) that several uncounseled prior misde meanor convictions were calculated into the sentencing guidelines scoresheet; and (c) that the trial court’s reasons for departure from the sentencing guidelines were not clear and convincing. After due consideration, we remand for resentencing on the basis of appellant’s first argument; that the record fails to reflect that Kearse made a “clear choice” to be sentenced under the sentencing guidelines. Lynch v. State, 491 So. 2d 1169 (Fla. 4th DCA 1986).
Although both defense counsel and the prosecuting attorney participated in a discussion of the presumptive guideline sentence at the sentencing hearing, this court has held that neither the defendant’s silence nor his attorney’s participation in the guidelines sentence determination are sufficient to indicate an affirmative selection. Terrell v. State, 486 So. 2d 85 (Fla. 1st DCA 1986); Brinson v. State, 483 So. 2d 13 (Fla. 1st DCA 1986); Jennings v. State, 492 So. 2d 805 (Fla. 1st DCA 1986).
As his second ground, Kearse argues that the trial court erred in departing from the recommended guidelines sentence on the basis that defendant was a “major participant. Court consider [sic] that he induced another to commit a crime. The other participant has not been apprehended.” The fact that the defendant was a “major participant” is clearly not a valid reason for departure from the guidelines. Even assuming that inducement of another to commit a crime is a valid reason for departure, the record contains no evidence that Kearse in fact induced another to participate. In the event that an affirmative selection to be sentenced under the guidelines is made upon resentencing, the trial court is instructed that the reason used at the original sentencing is not a valid basis for departure.
Appellant’s third point, that the trial court erred in calculating five uncounseled misdemeanor convictions into the sentencing guidelines scoresheet, is without merit as the record fails to indicate that appellant was either unrepresented by counsel or had not waived the right to counsel. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980); Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985).
Accordingly, appellant’s conviction is affirmed; however, the sentence is reversed and remanded for resentencing.
BOOTH, C.J., and PEARSON, TILLMAN (RET.), Assoc. Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rock v. State, 584 So. 2d 1110 (Fla. 1st DCA 1991)…ed the burden of proof required for a defendant’s motion to dismiss and therefore has no application to probation revocation proceedings. We likewise find no merit in appellee’s argument that Harrell was receded from sub silentio in Kearse v. State, 501 So. 2d 80 (Fla. 1st DCA 1987). First, Kearse did not involve probation revocation proceedings. Second, Kearse is distinguishable from Harrell in that the former involved a defendant who failed 4o produce evidence showing that he was unrepresented or that he h…
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Whitfield v. State, 515 So. 2d 360 (Fla. 4th DCA 1987)…So. 2d 90 (Fla. 2d DCA 1984). As to the fourth reason, the fact that appellant occupied a position of leadership and dominance or, in other words, was a “major participant” in the crime, is clearly not a valid reason for departure. Kearse v. State, 501 So. 2d 80 (Fla. 1st DCA 1987). However, we hold that the second part of reason number four, that appellant induced others to participate in the commission of the crime, is supported by the record and is a valid basis for departure herein. In view of the exte…
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Hlad v. State, 565 So. 2d 762 (Fla. 5th DCA 1990)…Allen. Although both Harrell and Allen emanated from the same appellate court in the same year, the later case (Harrell) makes no mention of the earlier one. The First District appears to have receded from Harrell, sub silentio, in Kearse v. State, 501 So. 2d 80 (Fla. 1st DCA 1987). In any event, we agree with Allen. The dissent cites to State v. Troehler, 546 So. 2d 109 (Fla. 4th DCA 1989). In that case, the opinion of the court, without discussing the analytical problems inherent in the Baldasar 4-1-4 sp…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baldasar v. Illinois, 446 U.S. 222 (U.S. 1980)
- Brinson v. State, 483 So. 2d 13 (Fla. 1st DCA 1985)
- Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985)
- Lynch v. State, 491 So. 2d 1169 (Fla. 4th DCA 1986)
- Kearse v. State, 464 So. 2d 202 (Fla. 1st DCA 1985)
- State v. Kearse, 491 So. 2d 1141 (Fla. 1986)
- Terrell v. State, 486 So. 2d 85 (Fla. 1st DCA 1986)
- Jennings v. State, 492 So. 2d 805 (Fla. 1st DCA 1986)