ALPHONSO MCNEALY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alphonso McNealy appeals his sentence for possession of a firearm by a convicted felon, challenging the trial court's significant departure from the guideline-recommended sentence of 12-30 months to 15 years imprisonment. The appellate court agrees that the trial court relied on several impermissible factors in aggravating the sentence and reverses for resentencing.
The trial court erred in departing from the guidelines sentence because it relied on multiple impermissible factors. The court reversed the sentence and remanded for resentencing, holding that unless the state can show beyond a reasonable doubt that the court would have imposed an upward departure based solely on valid reasons, the conviction stands but the sentence must be vacated.
[1] Failure to cooperate in the preparation of a presentence report is an insufficient reason for departure from a recommended guidelines sentence.
[2] Sentencing should be neutral with regard to economic status, and a defendant's employment history is not a valid basis for departing from guidelines.
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Join FLexlaw to unlock all legal intelligence“Failure to cooperate is an insufficient reason for departure.”
Establishes that a defendant's refusal to cooperate in presentence report preparation cannot justify upward sentencing departure
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Join FLexlaw to unlock all legal intelligenceMcNealy was tried by jury and found guilty of possession of a firearm by a convicted felon. The trial court sentenced him to 15 years imprisonment, de…
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HALL, Judge.
Alphonso McNealy appeals his judgment and sentence for possession of a firearm by a convicted felon. He contends that the trial court erred in departing from the recommended guidelines sentence. We agree.
Appellant was tried by a jury and found guilty of possession of a firearm by a convicted felon. The trial judge departed from the recommended guidelines sentence of twelve to thirty months and sentenced appellant to fifteen years’ imprisonment. In aggravating appellant’s sentence, the trial court based its departure on the following reasons:
1. Appellant refused to cooperate in the preparation of the presentence report. Failure to cooperate is an insufficient reason for departure. Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1984).
2. Appellant has never worked in his life. This reason is contrary to Rule 3.701(b)(1), Florida Rules of Criminal Procedure, which provides that sentencing should be neutral with regard to economic status. Olivera v. State, 494 So. 2d 298 (Fla. 1st DCA 1986).
3. Appellant threatened to kill one of the officers who arrested him. Factors relating to the instant offense for which a conviction was not obtained are improper bases for departure. Washington v. State, 500 So. 2d 316 (Fla. 2d DCA 1986).
4. Appellant has been a discipline problem while in the county jail. Again, failure to cooperate and general disregard for the criminal justice system are invalid reasons to depart from the guidelines. Scott v. State, 488 So. 2d 146 (Fla. 3d DCA 1986).
5. Appellant’s prior record is far worse than the scoring reflects. The trial court’s disagreement with the sufficiency of the guideline sentence is an invalid reason for departure. Williams v. State, 492 So. 2d 1308 (Fla.1986).
6. There was a high probability that appellant was contemplating another crime at the time he was apprehended. Speculation as to what appellant might have done in the future is not a clear and convincing reason for departure. Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984).
7. Appellant has repeatedly violated his probation and was on probation when the present offense occurred. A second probation violation and the timing of a probation violation may be a valid reason for departure. Torrey v. State, 482 So. 2d 552 (Fla. 2d DCA 1986).
8. There is no hope of rehabilitating appellant and society has a right to be protected from him. We have held that a trial court may properly depart from the guidelines where the defendant demonstrates an inability to be rehabilitated by committing a new offense while out on probation, Konyves v. State, 501 So. 2d 127 (Fla. 2d DCA 1987); however, a finding that the defendant is a threat to society based solely on his prior record is not a valid reason for departure. Williams v. State.
9. Juvenile record not scored because of remoteness in time. Juvenile offenses not factored into the guidelines sentence are valid reasons for departure. Weems v. State, 469 So. 2d 128 (Fla.1985).
In departing from the guidelines recommended sentence, the trial court relied on both permissible and impermissible reasons. Since the state has not shown beyond a reasonable doubt that the court would have departed from the guidelines sentence without consideration of the impermissible reasons, we reverse and remand for resentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985); Wade v. State, 482 So. 2d 346 (Fla.1986).
We find no merit in appellant’s two remaining points on appeal.
Accordingly, we affirm appellant’s conviction, but we reverse the sentence and remand to the trial court for resentencing. In the event the trial court again decides to depart from the recommended guidelines sentence, it should set forth in writing detailed particulars supporting its valid reasons for departure.
Reversed and remanded.
CAMPBELL, A.C.J., and SANDERLIN, J., concur.
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Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA 1987)…departure, only two are proper: The defendant’s unamenability to rehabilitation and his escalating pattern of criminal conduct. See Keys v. State, 500 So. 2d 134 (Fla.1986); Allen v. State, 12 FLW 1055 (Fla. 4th DCA June IT, 1987); McNealy v. State, 502 So. 2d 54 (Fla. 2d DCA 1987); heath v. State, 487 So. 2d 384 (Fla. 4th DCA 1986); Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986); Keen v. State, 481 So. 2d 1274 (Fla. 5th DCA 1986). Thus, this case is remanded for the trial court to consider whether it woul…
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State v. Myers, 515 So. 2d 333 (Fla. 3d DCA 1987)…he state next contends that neither Myers’ expression of remorse, cf. Gibson v. State, 489 So. 2d 836 (Fla. 3d DCA 1986) (lack of remorse an invalid ground for departure), nor Myers’ non-violent personality, justifies departure. Cf McNealy v. State, 502 So. 2d 54 (Fla. 2d DCA 1987) (hypothesis that defendant is threat to society based solely on prior record not a valid reason for departure). Again, we agree. In addition, the state correctly argues that the trial court’s finding that Myers can be rehabilitate…
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State v. Williams, 515 So. 2d 1051 (Fla. 3d DCA 1987)…2d 268 (Fla. 1st DCA 1985), review denied, 484 So. 2d 10 (Fla.1986). Cf Hankey v. State, 485 So. 2d 827, 828 (Fla. 1986) (“Economic hardship on the victim can never constitute a clear and convincing reason to support departure.”); NcNealy v. State, 502 So. 2d 54 (Fla. 2d DCA 1987) (hypothesis that defendant is threat to society solely based on prior record not a valid reason for departure); Brooks v. State, 490 [*1053] So. 2d 173 (Fla. 5th DCA 1986) (impermissible to base departure on possibility that “gain…
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 (13 total)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)
- Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984)
- Cephus E. Torrey v. State, 482 So. 2d 552 (Fla. 2d DCA 1986)
- Wade v. State, 482 So. 2d 346 (Fla. 1986)
- Scott v. State, 488 So. 2d 146 (Fla. 3d DCA 1986)
- Ramos v. Stabinski & Funt, P.A., 494 So. 2d 298 (Fla. 3d DCA 1986)