GEORGE TODD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Todd appeals his sentencing after conviction for theft. The trial court imposed a 5-year sentence, departing from the guidelines recommendation of community control or 12-30 months. The appellate court reversed and remanded for resentencing because none of the stated reasons for departure were legally sufficient under Florida sentencing guidelines.
The trial court's departure sentence is not supported by valid reasons and therefore must be reversed and remanded for resentencing. None of the four stated reasons constitute legally sufficient grounds for departure from the guidelines.
[1] A defendant's prior criminal history, already scored on the sentencing guidelines worksheet, cannot be used as a separate reason for departure from the recommended senten…
[2] A defendant's failure to rehabilitate, without more, is not a valid basis for departing from the recommended sentencing guidelines.
Previewing 2 of 4 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“Reason number 1, revocation of defendant's probation, would support a one cell departure to 21/2-31/2 years' incarceration, but no more absent other clear and convincing reasons for departure.”
Establishes the limited scope of departure justified by probation revocation alone
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTodd was convicted of theft and sentenced to 5 years' incarceration, a significant departure from the guideline range. The trial court justified the d…
The full statement of facts, procedural history, and disposition for this case are member content.
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ORFINGER, Judge.
The trial court departed from the recommended guidelines sentence of community control or 12-30 months’ imprisonment and sentenced defendant to 5 years’ incarceration. The trial court’s reasons for departure can be summarized as follows:
1. Defendant violated his probation which is now being revoked.
2. The defendant has an extensive history of Category 6 (Theft, Forgery, Fraud) convictions.
3. Defendant has made no effort to rehabilitate himself nor is there hope for his rehabilitation.
4. Defendant has a guilty mind as indicated by his prior record and the fact that he used a belt or device under his clothing to conceal the goods he stole.
Reason number 1, revocation of defendant’s probation, would support a one cell departure to 21/2-31/2 years’ incarceration, but no more absent other clear and convincing reasons for departure. Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). Reason number 2, defendant’s prior record, is already scored and cannot be used again to increase the sentence. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Additionally, there is a place on the score-sheet for calculating prior Category 6 convictions, and such prior convictions score 5 points each. Curiously, this space is left blank on the scoresheet, so either the score-sheet was incorrectly calculated or the record does not support the reason given. In any event, since the prior Category 6 convictions should be calculated into the total score, they cannot be used again as a basis for departure. Hendrix, supra.
The only record support for reason number three is defendant’s prior record which is not a valid basis for departure. Hendrix, supra; Cawthon v. State, 486 So. 2d 90 (Fla. 5th DCA 1986). Reason number 4, even if valid (which we need not decide), may not be used as a basis for departure because it refers to an offense for which defendant had not been convicted. See Fla.R.Crim.P. 3.701(d)(11).
Because none of the cited reasons for departure supports the departure sentence, this case must be reversed and remanded for resentencing.
Judgment AFFIRMED; REVERSED and REMANDED for resentencing.
UPCHURCH, C.J., and COWART, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mendenhall v. State, 511 So. 2d 342 (Fla. 5th DCA 1987)…ly be considered justification for a departure from the recommended sentence. 498 So. 2d at 865. The record, however, does not support that reason in this case. The unlikelihood of rehabilitation is not a valid reason for departure. Todd v. State, 503 So. 2d 451 (Fla. 5th DCA 1987); Williamson v. State, 496 So. 2d 886 (Fla. 2d DCA 1986). Intoxication and drug dependency are not valid reasons for departure. Barbera v. State, 505 So. 2d 413 (Fla.1987). See also Scurry v. State, 489 So. 2d 25 (Fla. 1986) (qua…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Cawthon v. State, 486 So. 2d 90 (Fla. 5th DCA 1986)