MARVIN RAYMOND BALLARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ballard appeals his sentencing, challenging the trial court's departure from Florida's sentencing guidelines. The appellate court affirms the sentence after reviewing the trial court's written reasons for departure, finding them constituted clear and convincing grounds under sentencing law.
The trial court's order complies with Boynton requirements and provides clear and convincing reasons for departure. The escalating pattern of criminal conduct and unamenability to rehabilitation are valid departure grounds that do not constitute improper double counting of prior offenses, as they consider the pattern and rehabilitation potential rather than the offenses themselves.
[1] A trial court's written order delineating reasons for departure from sentencing guidelines must comply with established legal precedent.
[2] An escalating pattern of more serious offenses and unamenability to rehabilitation constitute clear and convincing reasons for departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“this order complies with the dictates of Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985); affirmed State v. Boynton, 478 So. 2d 351 (Fla.1985)”
Establishes the legal standard for written reasons in guideline departures
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Join FLexlaw to unlock all legal intelligenceBallard was sentenced by the trial court with a departure from the sentencing guidelines. The court identified as grounds for departure Ballard's esca…
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PER CURIAM.
This court previously relinquished jurisdiction and remanded the case to the trial court for thirty days with directions to put in writing the reasons the court departed from the sentencing guidelines. The state has supplemented the record with the trial court's order of December 3,1985, delineating reasons for departure from the guidelines sentence.
We hold that this order complies with the dictates of Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985); affirmed State v. Boynton, 478 So. 2d 351 (Fla.1985). In addition, the reasons set forth as grounds for departure from the sentencing guidelines, Ballard’s escalating pattern of more serious offenses and his unamenability to rehabilitation, are clear and convincing reasons for departure.
We find that the above reasons do not represent the type of “double” consideration of prior offenses prohibited by Hendrix v. State, 475 So. 2d 1218 (Fla.1985), since it is not the prior offenses themselves that are considered but rather the pattern of escalating criminality discernible from them and the evidence that appellant is unam-endable to rehabilitation through the probation process. See Dorado v. State, 482 So. 2d 561 (Fla. 2d DCA 1986); Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985); Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985); Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984); Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984). But see Battles v. State, 482 So. 2d 540 (Fla. 3d DCA 1986); Smith v. State, 479 So. 2d 804 (Fla. 1st DCA 1985).
Accordingly, the sentence entered by the trial court is hereby affirmed.
DOWNEY and LETTS, JJ., concur. HURLEY, DANIEL T.K., Associate Judge, dissents with opinion.
HURLEY, Judge,
dissenting.
In my view, neither of the reasons stated by the trial court constitutes a clear and convincing reason to depart from the sentencing guidelines. On the contrary, I submit that both reasons violate the general rule which holds that a trial court may not depart from the guidelines based upon a factor which has already been weighed in arriving at a presumptive sentence. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985). The trial court’s first reason was the “continuing pattern of increasing serious offenses.” The scoresheet, however, reveals that the trial court factored in both the number and the seriousness of prior convictions when it computed the presumptive sentence. Thus, under the Hendrix rule, the trial court should be precluded from placing a new tag on an old factor and counting it a second time.
The same holds true for the trial court’s second reason: “The defendant’s poor performance on probation and his inability to [achieve] rehabilitation.” If, by “poor performance,” the trial court is referring to the fact that the defendant violated his probation, the trial court factored that in when it increased the presumptive sentence by one cell pursuant to Rule 3.701(d)(15), Fla.R.Crim.P. On the other hand, if “poor performance” is a veiled reference to the criminal act which triggered the probation violation, that act cannot be factored in because the defendant has not been tried and convicted. Accordingly, I respectfully dissent.
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REE v. State, 512 So. 2d 1085 (Fla. 4th DCA 1987)…valid. See Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986). The state concedes, however, that the third reason was invalid; and although the fourth reason (trend toward criminality of increasing severity), could have been valid, Ballard v. State, 501 So. 2d 1285 (Fla. 4th DCA), rev. denied, 488 So. 2d 67 (Fla.1986), it was not sufficiently supported by the evidence. Since the state has not shown beyond a reasonable doubt that the absence of the two invalid reasons for departure would not have affected the s…
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ABT v. State, 504 So. 2d 548 (Fla. 4th DCA 1987)…8 (Fla. 4th DCA 1986). Reason number two and the first part of reason number three are essentially the same. A history of crimes committed in an escalating pattern in nature and severity can be a valid basis to deviate. See, e.g., Ballard v. State, 501 So. 2d 1285 (Fla. 4th DCA 1986); Pittman v. State, 492 So. 2d 741 (Fla. 1st DCA 1986). We have considered Williams v. State, 492 So. 2d 1308 (Fla.1986), and do not interpret it as applicable to an escalating pattern of conduct, a factor which has not been previ…
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ABT v. State, 528 So. 2d 112 (Fla. 4th DCA 1988)…int at the time of the offense. See Fla.R. Crim.P. 3.701(b)(6). The second reason, escalating pattern of criminal conduct, was considered by this court and found to be a valid reason for departure. Abt, 504 So. 2d at 550. See also Ballard v. State, 501 So. 2d 1285 (Fla. 4th DCA 1986). The third reason for departure, that appellant committed a Home Invasion Burglary which is a new phenomenon not envisioned by the drafters of the sentencing guidelines, is invalid. This court previously considered and rejected…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- State v. Boynton, 478 So. 2d 351 (Fla. 1985)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984)
- Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984)
- Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985)
- Alphonso Prosperty Smith v. State, 479 So. 2d 804 (Fla. 1st DCA 1985)
- Camilo Dorado v. State, 482 So. 2d 561 (Fla. 2d DCA 1986)
- Battles v. State, 482 So. 2d 540 (Fla. 3d DCA 1986)