WILLIE GENE MELTON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Gene Melton, Jr. appealed his sentences for burglary and aggravated battery, challenging the trial court's reasons for imposing sentences exceeding the Florida sentencing guidelines. The court reversed and remanded for resentencing because three of the four stated reasons for departure were invalid under Florida law.
Three of the four reasons provided by the trial court were invalid: (1) the use of a dangerous weapon had already been factored into the guidelines calculation; (2) the commission of offenses in a 'calculated manner' does not justify departure; and (3) reliance on the mere existence of prior convictions, which are already scored in the guidelines, is impermissible. Only the fourth reason—commission of the crime in the presence of the victim's children, with the defendant's awareness thereof—was valid.
[1] A reason for departing from sentencing guidelines cannot be used if it was already factored into the guidelines calculation.
[2] The commission of an offense in a "calculated manner" does not, by itself, justify a departure 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 intelligence“As for reason # 1, use of the knife had — as explicitly recognized by the judge — already been taken into consideration in determining the guidelines sentence. Such reason can therefore not support guidelines departure.”
Establishes that factors already incorporated into the guideline calculation cannot serve as independent justification for departure sentences.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMelton and an accomplice broke into a victim's home. During the burglary, the accomplice wounded the victim with a knife when she resisted their attem…
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NIMMONS, Judge.
The appellant pled guilty to burglary of a dwelling and aggravated battery by use of a deadly weapon (knife). He asserts on appeal that the trial court’s reasons for imposing sentences in excess of the guidelines were not valid.
The appellant and an accomplice broke into the victim’s house. During the burglary, the accomplice wounded the victim with a knife when she fought off the pair’s attempts to rape her. The trial court stated the following as his written reasons for departure:
1) Use of dangerous weapon — knife— Realize also factored in guidelines.
2) Committed in calculated manner. 3) Prior history — Defendant sentenced to DOC in 1981 for burglary of a dwelling.
4)Act committed in presence of victim’s children. Defendant aware of children’s presence.
As for reason # 1, use of the knife had — as explicitly recognized by the judge — already been taken into consideration in determining the guidelines sentence. Such reason can therefore not support guidelines departure. State v. Cote, 487 So. 2d 1039 (Fla.1986); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985); Callaghan v. State, 462 So. 2d 832 (Fla. 4th DCA 1985).
Neither can the trial court’s second reason — commission of the offenses in a “calculated manner” — justify departure. Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984) (“premeditated and calculated”); Von Carter v. State, 468 So. 2d 276, 281 (Fla. 1st DCA 1985) (“pre-meditation”); Knowlton v. State, 466 So. 2d 278 (Fla. 4th DCA 1985) (robbery “planned in advance”); Dority v. State, 489 So. 2d 1198 (Fla. 2nd DCA 1986) (“premeditation”).
The court’s third reason is also impermissible because it focuses primarily on the mere existence of prior convictions, a factor already scored. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Riggins v. State, 489 So. 2d 180 (Fla. 1st DCA 1986).
We find, however, the fourth reason for departure to be valid. See Cortez v. State, 488 So. 2d 163 (Fla. 1st DCA 1986) and Davis v. State, 489 So. 2d 754 (Fla. 1st DCA 1986).
Since we are unable to conclude that the state has met its burden of showing that the trial court would have departed in the absence of the invalid reasons, we must reverse the sentences and remand for re-sentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985).
REVERSED and REMANDED.
WENTWORTH and WIGGINTON, JJ., concur.
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Brown v. State, 587 So. 2d 563 (Fla. 1st DCA 1991)…ischarge an explosive device. Cf. Dixon v. State, 513 So. 2d 1378 (Fla. 3d DCA 1987) (settled criminal intent improper basis for departure sentence for battery on law enforcement officer, resisting arrest with violence and battery); Melton v. State, 501 So. 2d 96 (Fla. 1st DCA 1987) (“calculated manner” in which offenses of burglary of a dwelling and aggravated battery with a deadly weapon were committed improper basis for departure); Brown v. State, 483 So. 2d 537 (Fla. 2d DCA 1986) (premeditation improper…
Authorities Cited (13 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984)
- von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985)
- Knowlton v. State, 466 So. 2d 278 (Fla. 4th DCA 1985)
- Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985)
- Davis v. State, 489 So. 2d 754 (Fla. 1st DCA 1986)
- Riggins v. State, 489 So. 2d 180 (Fla. 1st DCA 1986)