RICHARD COUSINS, 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.
Richard Cousins appealed his conviction and sentence for battery of a law enforcement officer, challenging the trial court's departure from presumptive sentencing guidelines. The appellate court found that the trial court's reasons for departure were neither clear and convincing nor valid, and remanded for resentencing with a corrected scoresheet.
The appellate court held that none of the trial court's four stated reasons for departure were valid under sentencing guidelines law, and that the scoresheet was incorrect because it failed to include the burglary conviction in the prior record category. The case was remanded for resentencing according to an amended scoresheet within the guidelines.
[1] A prior felony conviction must be included in a defendant's scoresheet if the conviction occurs before sentencing for the current offense, and cannot serve as a basis for…
[2] A single charge of probation violation is insufficient to support a departure sentence.
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 crime committed prior to the subject offense should be factored into the guidelines so long as the conviction of the prior crime takes place before the sentencing of the subject offense”
Establishes the standard for including prior convictions in sentencing scoresheet calculations
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCousins was convicted of battery of a law enforcement officer and sentenced to thirty months' incarceration followed by two years' community control. …
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 Sentencing Guidelines Departure Reasons cases and more on FLexlaw
HALL, Judge.
In this appeal from his conviction and sentence for battery of a law enforcement officer, Cousins argues that the trial court’s reasons for departure from the presumptive guidelines sentence were not clear and convincing. We agree and remand for resentencing.
Appellant was sentenced to thirty months’ incarceration to be followed by two years’ community control. In departing from the presumptive guidelines sentence of any nonstate prison sanction, the court listed four reasons for departure:
1. The defendant had a felony charge pending in another jurisdiction when this offense was committed.
At the time of sentencing for the instant offense, appellant had already been convicted and sentenced for the felony, a burglary. Therefore, the felony conviction should have been included in appellant’s scoresheet instead of being considered as a reason for departure.
The trial court mistakenly believed that the burglary could not be scored since appellant had not been sentenced for the burglary prior to committing the instant offense. However, this court has held that a crime committed prior to the subject offense should be factored into the guidelines so long as the conviction of the prior crime takes place before the sentencing of the subject offense. Falzone v. State, 496 So. 2d 894 (Fla. 2d DCA 1986). Thus, this cause must be remanded so that a new scoresheet can be prepared to include the burglary in the “prior record’’ category.
2.The defendant is currently an absconder from the Tampa Restitution Center, his residence at which was a condition of probation; his poor prior performance as a probationer clearly shows he is in need of correctional and rehabilitative treatment through commitment to a penal facility.
A single charge of violation of probation will not support a departure sentence. Mack v. State, 489 So. 2d 205 (Fla.2d DCA 1986). In addition, the trial court’s conclusion that the appellant could best be rehabilitated by commitment to a penal facility is an invalid reason for departure. Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985).
3. The defendant’s prior history of violent and assaultive behavior establishes a pattern of conduct that makes him a continuing threat to the community.
The trial court’s reliance on appellant’s prior convictions already factored into the guidelines cannot justify a departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). The trial court also apparently considered an offense for which appellant was not convicted. As a juvenile, appellant was charged with aggravated assault; however, no disposition of the case appears in the record. There can be no deviation from the guidelines on the basis of prior arrests for which there has been no finding of guilt. Burke v. State, 488 So. 2d 404 (Fla.1985).
4. The defendant’s prior history convinces the court that any chance for meaningful rehabilitation in his case depends on commitment to the Youthful Offender Program in the Department of Corrections.
This reason also appears to be based on appellant’s prior record and does not constitute a clear and convincing reason for departure.
Therefore, since none of the trial court’s reasons are valid and the scoresheet was incorrect, the case should be remanded for resentencing according to an amended scoresheet and within the sentencing guidelines.
LEHAN, A.C.J., and SANDERLIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Riley Bernard Smith v. State, 518 So. 2d 1336 (Fla. 5th DCA 1987)…held that under the above language, a crime committed prior to the offense for which sentencing is to be imposed should be factored into the guidelines so long as the conviction of the prior crime takes place before the sentencing. Cousins v. State, 507 So. 2d 651 (Fla. 2d DCA 1987); Falzone v. State, 496 So. 2d 894 (Fla. 2d DCA 1986); Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986). In the first case, Frank, the court stated that given the commas setting off the words “resulting in conviction,” the rule me…
-
Brown v. State, 529 So. 2d 1247 (Fla. 4th DCA 1988)…y should not have been factored in his guidelines score-sheet because the conviction for the prior robbery occurred after the commission of the instant offense. We hold that the trial court correctly scored this as a prior offense. Cousins v. State, 507 So. 2d 651 (Fla. 2d DCA 1987); Falzone v. State, 496 So. 2d 894 (Fla. 2d DCA 1986). Reversed and remanded to vacate the conviction and sentence for aggravated assault, and resentence on the robbery conviction consistent with this opinion. ANSTEAD and DELL,…
-
Sulzbach v. State, 522 So. 2d 433 (Fla. 1st DCA 1988)…urrently being sentenced. Therefore, the four prior. convictions should have been factored into the prior record portion of the guidelines scoresheet for the escape and forgery charges, rather than used as reason for departure. See Cousins v. State, 507 So. 2d 651 (Fla. 2d DCA 1987). We also note that the original sentence calculation which resulted in the seven to nine year recommendation, utilized a [*435] category nine scoresheet designed for “All Other Felony Offenses.” However, the second sentence calc…
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
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985)
- Falzone v. State, 496 So. 2d 894 (Fla. 2d DCA 1986)
- Mack v. State, 489 So. 2d 205 (Fla. 2d DCA 1986)