STATE OF FLORIDA, APPELLANT,
v.
EDGAR DAVIS DUFFER, APPELLEE
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Florida appealed the sentencing of Edgar Davis Duffer for obtaining property by worthless check, challenging both the absence of a sentencing guidelines scoresheet and the trial court's downward departure from guidelines. The appellate court found the missing scoresheet was harmless error but agreed the trial court's reasons for departure (defendant's explanation for non-payment and planned marriage) were not clear and convincing under Florida sentencing law, vacating and remanding for resentencing.
The court held that the absence of a scoresheet from the record on appeal is harmless error when one was prepared and presented to the trial judge at sentencing. The court held that the trial court's reasons for departure—doubt about guilt, anticipated restitution compliance, and the defendant's planned marriage—are not clear and convincing and therefore invalid under Florida sentencing law.
[1] The absence of a sentencing guidelines scoresheet from the record on appeal is harmless error when the scoresheet was prepared and presented to the trial judge for consid…
[2] A trial court's doubt regarding a defendant's guilt is an invalid reason for a downward departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“the absence of a scoresheet from the record on appeal is harmless error because one was prepared and presented to the trial judge for his consideration at sentencing”
Establishes the harmless error standard for missing sentencing guidelines scoresheets
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Join FLexlaw to unlock all legal intelligenceEdgar Davis Duffer pled nolo contendere and was adjudicated guilty of obtaining property in return for a worthless check. The trial court sentenced hi…
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PER CURIAM.
The state appeals the sentence imposed on Edgar Davis Duffer for obtaining property in return for a worthless check. Duffer pled nolo contendere, was adjudicated guilty, and sentenced to two years community control, followed by three years probation.
The state alleges that there were two sentencing errors: first, that no sentencing guidelines scoresheet was prepared and second, that the court’s downward departure is not supported by clear and convincing reasons.
On review of the record we conclude that the absence of a scoresheet from the record on appeal is harmless error because one was prepared and presented to the trial judge for his consideration at sentencing. See Percival v. State, 506 So. 2d 66 (Fla. 2d DCA 1987); Whistin v. State, 500 So. 2d 730 (Fla. 2d DCA 1987); Ford v. State, 474 So. 2d 250 (Fla. 2d DCA 1985); Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA), review denied, 471 So. 2d 43 (Fla.1985).
For the reasons stated below, we agree that the reasons cited by the trial court to support the downward departure are not clear and convincing.
The first reason given by the trial judge is that Duffer offered a reasonable explanation for his failure to pay the amount owed on the worthless check. We construe this reason as an expression of the trial court’s doubt regarding Duffer’s guilt. This is an invalid reason for departure. See State v. Wright, 473 So. 2d 268 (Fla. 1st DCA 1985).
The court stated further that Duffer had made restitution. Although the court had not yet ordered restitution, section 775.089, Florida Statutes (1985), provides that the court shall order a defendant to make restitution to the victim. We note that compliance with an anticipa ted court order is not a proper basis to depart. See State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986).
The court’s second reason for departure was:
The Defendant has apparently developed a relationship with a lady who appears to have a positive influence on him, they plan to marry, and the court feels that this is the kind of stable relationship necessary to the Defendant.
The fact that Duffer plans to marry is not a clear and convincing reason for departure. See State v. Glasper, 506 So. 2d 480 (Fla. 4th DCA 1987). Similarly, a defendant’s “stable environment” is an invalid ground upon which to base a departure. Taylor. For the foregoing reasons, we vacate the sentence and remand for resentencing within the guidelines. Although we hold that the absence of a scoresheet from the record is harmless error in this case, on remand the trial court is instructed to include a scoresheet in the record.
Vacated and remanded.
CAMPBELL, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Williams, 707 So. 2d 1212 (Fla. 5th DCA 1998)…an act of passion. We find that the reasons enunciated by the trial court are insufficient to support a downward departure sentence. See State v. Sachs, 526 So. 2d 48 (Fla.1988); State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991); State v. Duffer, 509 So. 2d 1326 (Fla. 2d DCA 1987); see also State v. McGriff, 698 So. 2d 331 (Fla. 2d DCA 1997). Accordingly, we reverse and remand for imposition of a guideline sentence or withdrawal of the plea. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987); McGriff, supra,…
Authorities Cited
- Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA 1985)
- State v. Wright, 473 So. 2d 268 (Fla. 1st DCA 1985)
- State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986)
- Percival v. State, 506 So. 2d 66 (Fla. 2d DCA 1987)
- Ivey v. State, 500 So. 2d 730 (Fla. 2d DCA 1987)
- Whistin v. State, 500 So. 2d 730 (Fla. 2d DCA 1987)
- State v. Glasper, 506 So. 2d 480 (Fla. 4th DCA 1987)
- Ford v. State, 474 So. 2d 250 (Fla. 2d DCA 1985)