DONALD LEE BRADLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Bradley challenged his burglary conviction and upward departure sentence on delayed appeal. The Florida appellate court affirmed the conviction but vacated the sentence, finding the trial court failed to articulate valid reasons under sentencing guidelines for departing upward from the presumptive range.
The trial court's conviction is affirmed, but the sentence is vacated and remanded for resentencing within the guidelines because none of the reasons cited by the trial court constituted valid grounds for departure under Florida sentencing law.
[1] A trial court cannot ground sentence departure upon an offense for which the defendant was neither charged nor convicted.
[2] A defendant's status as an "irretrievable criminal" incapable of rehabilitation is not a valid reason for upward departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“To ground departure upon the attempted sexual battery must fail — Bradley was neither charged with nor convicted of that offense.”
Establishes that factors not part of the conviction cannot support sentencing departure
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Join FLexlaw to unlock all legal intelligenceBradley was convicted of burglary. At sentencing, the trial court imposed a sentence above the guidelines presumptive range. The trial court's departu…
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FRANK, Judge.
The appellant, Donald E. Bradley, the beneficiary of a delayed appeal permitted by State v. Meyer, 430 So. 2d 440 (Fla.1983), challenges his conviction and sentence for burglary. We find no reason to disturb Bradley’s conviction; it is affirmed. He correctly disputes, however, the trial court’s written reasons for its upward departure from the guidelines presumptive range.
The departure document prepared by the trial court chronicles Bradley’s life style and criminal history. We have extracted from it the reasons and events the trial court found sufficient to justify the enhancement of Bradley’s sentence. Although the trial court stated its intention to depart irrespective of whether all of the reasons are appropriate, we do not pass upon the effect of that declaration in light of our determination that none of the grounds will sustain departure.1
Thus, Bradley’s purpose to rape a young girl while she was asleep in her home, aborted by her cries for assistance, violated section 777.04, Florida Statutes (1984). To ground departure upon the attempted sexual battery must fail — Bradley was neither charged with nor convicted of that offense. State v. Tyner, 506 So. 2d 405 (Fla.1987). The trial court’s belief, no matter how well-founded, that Bradley is an “irretrievable criminal” incapable of rehabilitation is no less infirm under presently settled standards. Washington v. State, 501 So. 2d 133 (Fla. 2d DCA 1987). The similarity of Bradley’s present criminal behavior with his past convictions will not withstand Aleman v. State, 498 So. 2d 967 (Fla. 2d DCA 1986). Here, unlike the circumstances warranting departure in State v. Pentaude, 500 So. 2d 526 (Fla.1987), the record does not reflect Bradley’s violation of probation but only the currency of a “parole” violation proceeding; that fact will not, however, support departure. Pedrero v. State, 499 So. 2d 26 (Fla. 2d DCA 1986). The trial court's reliance upon statements contained in a PSI report indicating that Bradley had been sentenced to ten years in state prison runs afoul of Hendrix v. State, 475 So. 2d 1218 (Fla. 1985). The trial court’s findings that Bradley’s personal life is distressing,” and he “has never had significant employment” are, as we said in McNealy v. State, 502 So. 2d 54 (Fla. 2d DCA 1987), impermissible reasons for exceeding the recommended range. The fact that he has fathered two illegitimate children is patently an improper reason for enhancing his sentence. Even though the trial court determined that Bradley “continues to smoke marijuana”, an unlawful act, that conduct will not support departure in the light of Tyner. See Hall v. State, 503 So. 2d 1370 (Fla. 4th DCA 1987); Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985).
Bradley’s “extensive juvenile record” used in departing from the guidelines reveals that the “juvenile” offenses, committed when he was a juvenile, were treated as adult dispositions and were scored as part of his prior record. A juvenile record can constitute a clear and convincing reason for departure. Williams v. State, 504 So. 2d 392 (Fla.1987); Weems v. State, 469 So. 2d 128 (Fla.1985). In the instant matter, however, the trial court was precluded from using the juvenile offenses as a basis for departure; they were factored into the scoresheet as felony convictions in arriving at Bradley’s presumptive range. Hendrix; Cf. Williams.
Accordingly, we affirm Bradley’s conviction but find no clear and convincing reasons for the trial court’s departure; we vacate the sentence and remand for resentencing within the guidelines.
RYDER, A.C.J., and THREADGILL, J., concur. . The inclusion of such statement in the departure order is intended to overcome a remand stemming from the application of Albritton v. State, 476 So. 2d 158 (Fla.1985); see Fryson v. State, 506 So. 2d 1117 (Fla. 1st DCA 1987); Griffis v. State, 497 So. 2d 296 (Fla. 1st DCA 1986); Reichman v. State, 497 So. 2d 293 (Fla. 1st DCA 1986); Kigar v. State, 495 So. 2d 273 (Fla. 5th DCA 1986).
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Lucio John Salas v. State, 544 So. 2d 1040 (Fla. 4th DCA 1989)…CA), review denied, 518 So. 2d 1273 (Fla.1987); and Leath v. State, 487 So. 2d 384 (Fla. 4th DCA 1986). We acknowledge that these decisions conflict with the decisions rendered in Baker v. State, 493 So. 2d 515 (Fla. 1st DCA 1986); Bradley v. State, 509 So. 2d 1137 (Fla. 2d DCA 1987) and Washington v. State, 501 So. 2d 133 (Fla. 2d DCA 1987). The trial court’s departure based upon the insufficiency of the recommended guidelines sentence is not a valid reason for departure. However, we hold that in a case such…
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Robinson v. State, 530 So. 2d 1085 (Fla. 4th DCA 1988)…d 548 (Fla. 4th DCA 1987), stated that the failure to rehabilitate the defendant was an invalid ground for departure. See also Fain v. State, 488 So. 2d 169 (Fla. 1st DCA 1986); Gibson v. State, 510 So. 2d 1191 (Fla. 1st DCA 1987); Bradley v. State, 509 So. 2d 1137 (Fla. 2d DCA 1987). However, the authority followed in Abt v. State, (Samuel) Williams v. State, 492 So. 2d 1308 (Fla. 1986), and Scurry v. State, 489 So. 2d 25 (Fla.1986), are here inapposite. In any event, we consider (Jessie) Williams v. State, 5…
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Migilore v. State, 550 So. 2d 163 (Fla. 1st DCA 1989)…easons listed on the score-sheet is sufficient for departure from the guidelines. Whitehead v. State, 498 So. 2d 863 (Fla.1987); Hill v. State, 498 So. 2d 544 (Fla. 1st DCA 1986); Aleman v. State, 498 So. 2d 967 (Fla. 2d DCA 1986); Bradley v. State, 509 So. 2d 1137 (Fla. 2d DCA 1987); State v, Mischler, 488 So. 2d 523 (Fla.1986); Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Rease v. State, 485 So. 2d 5 (Fla. 1st DCA 1986); Pendleton v. State, 493 So. 2d 1111 (Fla. 1st DCA 1986); Sarvis v. State, 465 So. 2d 57…
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 (18 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- State v. Meyer, 430 So. 2d 440 (Fla. 1983)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
- State v. Tyner, 506 So. 2d 405 (Fla. 1987)
- Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985)
- Griffis v. State, 497 So. 2d 296 (Fla. 1st DCA 1986)