MICHAEL KEITH LEVERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's written reasons for departing from the presumptive guidelines were not clear and convincing, thus requiring resentencing.
[1] A trial court's written reasons for departing from presumptive sentencing guidelines must be clear and convincing.
[2] Characterizing a defendant as a "scofflaw" is an invalid reason for departing from recommended sentencing ranges.
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced to prison for five years, departing from the recommended non-state prison sanction. The trial court cited 'scofflaw' and 'see …
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[*1321] SMITH, Judge.
Leverson appeals his final judgment and sentence for possession of cocaine in Case No. BM-4 and revocation of his probation in Case No. BM-312. After reviewing the briefs and record on appeal, we find no merit in appellant’s arguments as they pertain to his conviction and adjudication of guilt in Case No. BM-4 and as to his revocation of probation in BM-312. We do, however, find merit in appellant’s contention that the trial court’s written reasons for departing from the presumptive guidelines in Case No. BM-4 are not clear and convincing.
Appellant scored 62 points on the guidelines scoresheet, and the recommended sentence was “any non-state prison sanction.” The trial court sentenced appellant to prison for five years. On the score-sheet under the section entitled, “Reasons for Departure,” the trial court stated the following:
Defendant is a scofflaw.
See attached transcript.
“Scofflaw” is defined as “one who habitually violates the law or fails to answer court summonses.” . The American Heritage Dictionary 1163 (New College Edition 1982). The trial court did not determine that appellant was a habitual offender, but even had appellant been subjected to the provisions of section 775.084, Florida Statutes (1985), habitual offender status is an invalid reason for departing from the recommended sentencing range. Whitehead v. State, 498 So. 2d 863 (Fla.1986). See also, Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA 1986) (characterizing the defendant as a scofflaw was not supported by independent grounds).
As to the second reason for departure (“see attached transcript”), oral statements made by the judge at sentencing will not satisfy the sentencing guidelines requirement of written reasons. Smith v. State, 499 So. 2d 912 (Fla. 1st DCA 1986); Jackson v. State, 478 So. 2d 1054 (Fla.1985).
We affirm appellant’s conviction and adjudication of guilt in BM-4, but reverse the sentence and remand for resentencing. The revocation of probation in BM-312 is affirmed.
JOANOS and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nichols v. State, 504 So. 2d 414 (Fla. 1st DCA 1987)…t is based on appellant’s past criminal history and therefore violates Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Cf. Whitehead v. State, 498 So. 2d 863 (Fla.1986) (habitual offender status is not a valid reason for departure); Leverson v. State, 502 So. 2d 1320 (Fla. 1st DCA 1987) (characterization of defendant as scofflaw is an invalid reason for departure). Pentaude is moreover not relevant, because in the present case, the reason for departure was not based on appellant’s violation of probation. DENIE…
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Shipley v. State, 509 So. 2d 1328 (Fla. 2d DCA 1987)…he trial court was aware of the guidelines sentence. But see Whistin v. State, 500 So. 2d 730 (Fla. 2d DCA 1987). The trial court again erred when it vocalized reasons for departure, but did not set forth those reasons in writing. Leverson v. State, 502 So. 2d 1320 (Fla. 1st DCA 1987). Thus, the trial court’s failure to prepare a scoresheet and written reasons for departure requires that Shipley be resentenced in connection with the armed burglary offense. Waring v. State, 504 So. 2d 786 (Fla. 2d DCA 1987); Le…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA 1986)
- Smith v. State, 499 So. 2d 912 (Fla. 1st DCA 1986)