STATE OF FLORIDA, APPELLANT,
v.
PAUL ARSENEAU, APPELLEE
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The appellate court held that the trial court's reasons for departing from the presumptive guidelines sentence were not sufficiently clear and convincing to justify the mitigation.
The appellee was convicted of criminal mischief and burglary and received a mitigated sentence based on the trial court's belief that his drug problem…
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HALL, Judge.
The state appeals appellee’s mitigated guidelines sentence, alleging that the rea sons stated by the trial court were not so clear and convincing as to justify a downward departure.
Appellee was convicted of one count of criminal mischief and two counts of burglary. Appellee had a criminal history beginning in 1982 and continuing into 1986. Though this history included numerous acts of vandalism and automobile burglaries, the trial court felt that these activities were the result of appellee’s drug problem, which warranted more extensive treatment than is available in the Department of Corrections.
Appellee’s scoresheet indicated a presumptive guidelines sentence of 7-9 years’ imprisonment for the convictions. The trial court departed from the sentence recommended by the guidelines, sentencing appellee to a combination of probation, a drug treatment program, and two years’ imprisonment with the Department of Corrections. In setting forth the reasons for the departure, the trial court cited State v. Twelves, 463 So. 2d 493 (Fla. 2d DCA 1985), as justification for the departure.
We do not agree that the reasons for departure set forth in this case contain as sufficient detail as those set forth by the trial court in Twelves. In setting forth its reasons for departure, the trial court in Twelves explained the defendant’s history, citing expert evidence as to the disorder causing the defendant’s criminal conduct, and the programs available to remedy that disorder. We therefore find that, as stated, the reasons given by the trial court are not clear and convincing, and we reverse the sentence and remand for resentencing. If the trial court again decides to depart from the presumptive guidelines sentence, it must set forth sufficiently clear and convincing reasons to support that departure. Reversed and remanded.
SCHOONOVER, A.C.J., and FRANK, J., concur.
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Citator
Cited By
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State v. Rhymer R. Howell, Jr., 572 So. 2d 1009 (Fla. 1st DCA 1991)…parture. See State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988); State v. Twelves, 463 So. 2d 493 (Fla. 2d DCA 1985). But the decisions emphasize that such a reason for departure should be established with “sufficient detail.” See State v. Arseneau, 501 So. 2d 187 (Fla. 2d DCA 1987). Even if we accept the evidence in the present case as establishing the unavailability of treatment in prison, the record is entirely inadequate with regard to the necessary detail'for appellee’s placement in a treatment program…
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State v. Frinks, 555 So. 2d 916 (Fla. 1st DCA 1990)…tal disorder that can be remedied by treatment and the support of friends, relatives and employers who testified that they intend to assist the appellee in his effort to achieve rehabilitation is a valid reason for departure). Cf. State v. Arseneau, 501 So. 2d 187 (Fla. 2d DCA 1987) (reversing a downward departure because the court did not, as did the trial court in Twelves, explain the defendant’s history, citing expert evidence as to the disorder causing the defendant’s criminal conduct, and the programs av…
Authorities Cited
- State v. Twelves, 463 So. 2d 493 (Fla. 2d DCA 1985)