SCOTT LEE TRAVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Scott Traver was convicted of burglary with assault, kidnapping, auto theft, and petit theft. The appellate court affirmed the convictions but vacated the sentence because the trial court relied on both valid and invalid reasons for departing from the sentencing guidelines, requiring resentencing.
The convictions and adjudications of guilt are affirmed. However, the sentence is vacated and remanded for resentencing because the trial court departed from the guidelines based on reasons that were both valid and invalid, and the court cannot be satisfied the judge would have departed based on valid reasons alone. The narrative form of stating reasons does not constitute reversible error.
[1] Reasons for departing from sentencing guidelines are not reversible error when stated in narrative form.
[2] A trial court may depart from sentencing guidelines based on premeditation, as it is not an inherent component of the crimes charged.
Previewing 2 of 6 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“The trial judge departed from the presumptive sentence for reasons that are both valid and invalid. We are not satisfied that the trial judge would have departed on the basis of the valid reasons alone.”
Establishes the standard requiring vacation of sentence when trial court relies on both valid and invalid reasons for departure.
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Join FLexlaw to unlock all legal intelligenceTraver was convicted of burglary with assault, kidnapping, auto theft, and petit theft. The trial court departed from the guidelines sentence by provi…
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RYDER, Judge.
Appellant was convicted of burglary with assault, kidnapping, auto theft and petit theft. He argues three points on appeal relating to his sentences. We affirm the convictions and adjudications of guilt. However, we find merit in one of appellant’s points, and accordingly, vacate his sentence and remand for resentencing. Appellant’s first point on appeal is that the trial court erred in setting out in narrative form the reasons for departure from the guidelines sentence. We find no merit in this point. Written reasons in narrative form may make review more difficult, but it does not constitute reversible error. See Lerma v. State, 497 So. 2d 736 (Fla.1986) (supreme court analyzes reasons for departure set out in a narrative form).
Appellant’s second point is that the trial court departed from the suggested guidelines sentence for invalid reasons. This point has merit. A thorough reading of the trial court’s written reasons for departure indicates — at the most — twelve reasons for departure. For the trial court’s guidance at resentencing, we have listed below the twelve reasons, whether they are valid, and a brief statement why.
1. Pecuniary gain: Invalid (element of burglary).
2. Premeditated: Valid (not inherent component of the crimes. {Lerma v. State, 497 So. 2d 736, 738).
3. Heinous and cruel manner: Invalid (not supported by facts).
4. Physical disparity: Possibly valid (supreme court finds helplessness invalid as inherent in sexual battery. Lerma. But, first district finds vulnerability valid in aggravated battery and trespass on property. Hadley v. State, 488 So. 2d 162 (Fla. 1st DCA 1986)).
5. Age disparity: Valid {Hadley; Brown v. State, 483 So. 2d 537, 539 (Fla. 2d DCA 1986)).
6. Severe physical injuries (victim 1): Invalid (already factored into scoresheet).
7. Permanent pain (victim 1): Invalid (no evidence in record on appeal).
8. Semi-invalid left helpless 15 hours (victim 2): Valid (goes to vulnerability of victim in circumstance surrounding crime of which convicted, and not inherent. See Hadley).
9. Severe physical injuries (victim 2): Invalid (already factored into scoresheet).
10. Psychological trauma (victim 1): Invalid (element of burglary with assault).
11. Psychological trauma (victim 2): Invalid (element of burglary with assault).
12. Fled jurisdiction to avoid prosecution: Invalid (inherent in most criminal conduct. See Pendleton v. State, 493 So. 2d 1111,1113 (Fla. 1st DCA 1986)).
The trial judge departed from the presumptive sentence for reasons that are both valid and invalid. We are not satisfied that the trial judge would have departed on the basis of the valid reasons alone. Albritton v. State, 476 So. 2d 158 (Fla.1985). Accordingly, appellant’s sentence is vacated and the cause remanded for resentencing within the recommended guidelines range unless the trial court enters valid written reasons for departure.
Appellant’s third point is that the trial court’s departure from the recommended guidelines sentence was excessive. We cannot reach the merits of this point. The legislature has recently enacted a law mandating that the extent of departure from a guidelines sentence is no longer subject to appellate review. Ch. 86-273, § 1, Laws of Fla. (1986). Therefore, we could not have reviewed the extent of departure even if we had found the departure to be valid.
Appellant’s convictions and adjudications of guilt are affirmed. However, the sentence is reversed and vacated and the cause is remanded for resentencing consistent with this opinion.
Affirmed in part, reversed in part and remanded with instructions.
SCHEB, A.C.J. and SCHOONOVER, J., concur.
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Fryson v. State, 506 So. 2d 1117 (Fla. 1st DCA 1987)…[*1121] tion 921.001(5), Florida Statutes (Supp. 1986), this Court is precluded from reviewing the extent of the trial court’s departure from the recommended guidelines range. See Williams v. State, 500 So. 2d 501, n. 2 (Fla. 1986); Traver v. State, 502 So. 2d 1009 (Fla. 2d DCA 1987). Appellant’s final point challenges the imposition of two consecutive and one concurrent life sentences, without parole and without gain time, to run consecutive to the life sentence for the first degree murder, on the basis that…
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Duncan v. State, 532 So. 2d 674 (Fla. 1st DCA 1988)…rauma to the woman in the first case, therefore constituting a valid reason for departure with respect to the burglary of a dwelling count. On the other hand, since emotional trauma is an inherent component of burglary with assault, Traver v. State, 502 So. 2d 1009 (Fla. 2d DCA 1987), any emotional trauma to the woman in the second case, to support a departure from the sentencing guidelines, would have to be based on extraordinary circumstances clearly not inherent in the offense. Casteel v. State, 498 So. 2d…
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Winkler v. State, 515 So. 2d 1017 (Fla. 2d DCA 1987)…it was error for the trial judge to sentence him far in excess of the recommended sentence. At the outset, we mention that this court does not have the authority to review the extent of the departure from a guidelines sentence. See Traver v. State, 502 So. 2d 1009 (Fla. 2d DCA 1987). Appellant contends that the trial court did not provide “clear and convincing” reasons for departure. We agree with appellant that some of the trial court’s reasons for departure are invalid in that they either are based upon f…
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
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- Hadley v. State, 488 So. 2d 162 (Fla. 1st DCA 1986)
- Buchanan v. State, 483 So. 2d 537 (Fla. 2d DCA 1986)
- Pendleton v. State, 493 So. 2d 1111 (Fla. 1st DCA 1986)