KAREN EVRARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Karen Evrard appealed her sentencing departure from Florida's guidelines. The trial court imposed a 30-month prison sentence based on three factors: an uncounseled prior conviction, a stale prior conviction, and the defendant's alleged dishonesty to Department of Corrections officials. The court reversed and remanded, holding that uncounseled convictions and lies to DOC officials cannot justify departure from guidelines.
The court held that: (1) uncounseled convictions cannot justify departure from guidelines because using them would cause defendants to suffer anew from Sixth Amendment deprivations; (2) lies to DOC officials cannot justify departure because they do not implicate the judicial integrity concerns that might support departure for lies to the court; and (3) a stale prior conviction might justify departure, but since impermissible reasons were also given, reversal is required.
[1] A trial court must justify its departure from sentencing guidelines by clear and convincing reasons.
[2] A trial court may not depart from recommended sentencing guidelines based on the belief that a defendant lied to Department of Corrections officials.
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“a trial court may not depart from the recommended guidelines sentence based upon the court's belief that the defendant lied to officials from the Department of Corrections”
Establishes the core holding that lies to DOC officials cannot justify guideline departure because they do not invoke the judicial integrity concerns present when a defendant lies to the court
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEvrard pleaded nolo contendere to vehicular homicide. Her guidelines scoresheet totaled 66 points, recommending a non-state prison sanction. The trial…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Uncounseled Convictions cases and more on FLexlaw
GUNTHER, Judge.
Karen Evrard appeals from her sentence in which the trial court departed from the recommended guidelines sentence. We reverse, and we remand for resentencing in accordance with the guidelines.
The appellant plead nolo contendere to vehicular homicide. Her guidelines score-sheet totaled sixty-six points, with a recommended sentence of any non-state prison sanction. The trial judge departed from the recommended guidelines sentence on three grounds: (1) the defendant’s prior uncounseled conviction, (2) the defendant’s “stale” prior conviction, and (3) the court’s belief that the defendant lied to officials from the Department of Corrections. The court sentenced the appellant to thirty months in prison and thirty months probation. Evrard appeals from the sentence imposed by the trial court.
The trial court failed to justify its departure from the sentencing guidelines by clear and convincing reasons as required by Florida Rule of Criminal Procedure 3.701(d)(ll). The use of a “stale” prior conviction might properly serve as a clear and convincing reason for departure. Burke v. State, 483 So. 2d 404 (Fla.1985); Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986).
However, a trial court may not depart from the recommended guidelines sentence based upon the court’s belief that the defendant lied to the court. Neal v. State, 487 So. 2d 367 (Fla. 2d DCA 1986); Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986); Jones v. State, 481 So. 2d 516 (Fla. 4th DCA 1985); McBride v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985).
We find that the reasoning of the above authorities applies here.
Moreover, the court’s belief that the defendant lied to officials from the Department of Corrections presents a weaker case for a departure sentence than the court’s belief that the defendant lied to the court because the act of lying to officials of the Department of Corrections does not invoke the strong public policy in favor of protecting the integrity of the judicial process.
Therefore, we hold that a trial court may not depart from the recommended guidelines sentence based upon the court’s belief that the defendant lied to officials from the Department of Corrections.
Florida courts do not appear to have addressed the precise issue of whether an uncounseled prior conviction may be used as a clear and convincing reason to depart from a guideline sentence. Generally, an uncounseled conviction may not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel in the first proceeding. Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985); Hayes v. State, 468 So. 2d 470 (Fla. 4th DCA 1985).
See also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Permitting the use of an un-counseled conviction in a subsequent prosecution would cause the accused in effect to suffer anew from the deprivation of his Sixth Amendment rights. Harrell v. State, 469 So. 2d 169 (Fla. 1st DCA); review denied, 479 So. 2d 118 (Fla.1985).
In our view, this rationale also applies in the present case.
Therefore, we hold that the use of an uncounseled conviction is not a clear and convincing reason for departure from the guidelines sentence under Florida Rule of Criminal Procedure 3.701(d)(11).
Of the three reasons the trial court gave, only one, the “stale” prior conviction, could possibly justify departure. Where a trial court gives both permissible and impermissible reasons for departure, reversal is required unless the State proves beyond a reasonable doubt that the error was harmless and that the error did not affect the departure sentence. Albritton v. State, 476 So. 2d 158 (Fla.1985). One factor other courts have weighed in assessing whether the error was harmless is the number of invalid reasons relied on by the trial court. See, e.g., Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985). It is impossible for us to ascertain from this record the extent to which the judge relied on the impermissible reasons.
Therefore, the sentence must be reversed and remanded for resentencing in accordance with the guidelines.
REVERSED AND REMANDED.
LETTS and GLICKSTEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Pedro F. Bernal, M.D. v. Dep't of Prof'l Reg., 517 So. 2d 113 (Fla. 3d DCA 1987)…entencing guidelines are analogous and most persuasive.2 City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla.1985); Dixon v. State, 513 So. 2d 1378 (Fla. 3d DCA 1987); Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985); Evrard v. State, 502 So. 2d 3 (Fla. 4th DCA 1986); Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986). The other ground asserted, which refers to the alleged seriousness of the offense, is likewise insufficient. It seems clear that this ground does not “cite to the record in ju…
-
Chirino v. State, 516 So. 2d 97 (Fla. 3d DCA 1987)…s an obvious manipulation of the criminal justice system. All three reasons have been ruled invalid by courts of this state. See Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987); Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986); Evrard v. State, 502 So. 2d 3 (Fla. 4th DCA 1986).…
-
Brown v. State, 580 So. 2d 340 (Fla. 2d DCA 1991)…er. The state concedes that the misdemeanors were uncounseled and could not be scored. See Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988). Use of an uncounseled conviction is not a clear and convincing reason for departure. See Evrard v. State, 502 So. 2d 3 (Fla. 4th DCA 1986). Without considering the misdemeanors, therefore, the appellant’s record reflects only two offenses already scored to establish a pattern of criminal activity. If two offenses establish a pattern of criminal activity, then two of…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Argersinger v. Hamlin, 407 U.S. 25 (U.S. 1972)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985)
- Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985)
- Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986)
- Harrell v. State, 469 So. 2d 169 (Fla. 1st DCA 1985)
- Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985)
- Alphonse McBRIDE v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985)
- Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986)