MIGUEL CHENARD, APPELLANT,
v.
THE 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.
Chenard appeals his upward departure sentence for house burglary and grand theft following remand for resentencing. The court reverses, holding that none of the trial court's stated reasons for departing above the three-year guideline maximum are legally sufficient under Florida sentencing law.
The court holds that none of the four reasons for departure are acceptable under Florida law. Emotional trauma from burglary is not a valid basis for departure; repeated commission of the same offense without escalating severity is insufficient; the violence factor was factually unfounded; and disagreement with the guidelines themselves is impermissible as grounds for departure.
[1] A victim's emotional trauma from a home burglary is insufficient grounds for upward departure from sentencing guidelines when such trauma is a common consequence of the o…
[2] Prior convictions for the same or equivalent offenses, if already included in sentencing guideline computations, do not constitute a valid reason for upward departure.
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“the same or an equivalent offense is repeatedly committed, is seemingly to be distinguished from those in which an 'escalating course of criminal conduct' — that is, a pattern of crimes of increasing severity — is involved”
Establishes the legal distinction between repetitive offenses and escalating criminal conduct for purposes of sentencing departure.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceChenard was convicted on guilty plea for house burglary and grand theft. The trial court imposed a ten-year sentence, departing upward from the three-…
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 Retribution cases and more on FLexlaw
SCHWARTZ, Chief Judge.
Upon our remand for resentencing in Chenard v. State, 486 So. 2d 689 (Fla. 3d DCA 1986), the trial court again departed upward from the guidelines. The defendant again appeals and we again reverse on the ground that none of the reasons assigned is an acceptable basis for deviation.
Chenard was convicted on a guilty plea for a house burglary and grand theft. The trial court based its ten year sentence notwithstanding the three year guideline maximum upon factors which are each insufficient.
1.The “excessive emotional trauma” sustained by the teenage daughter of the burglarized family when she returned to find her room ransacked was precisely “the type of trauma that any victim of a burglary experiences when the sanctity of his or her home is violated and his or her possessions are taken” which was held insufficient to justify departure in State v. Rousseau, 509 So. 2d 281, 283 (Fla.1987).1
2. The fact that, within the previous three years, Chenard had been found guilty of two other house burglaries, both of which were included in the guideline computation, is likewise an invalid reason for departure. Rousseau, 509 So. 2d. at 283 (three burglaries in three weeks insufficient for departure); Mitchell v. State, 507 So. 2d 686 (Fla. 1st DCA 1987). This situation, in which the same or an equivalent offense is repeatedly committed, is seemingly to be distinguished from those in which an “escalating course of criminal conduct” — that is, a pattern of crimes of increasing severity — is involved. See Williams v. State, 504 So. 2d 392 (Fla.1987); Newland v. State, 508 So. 2d 486 (Fla. 3d DCA 1987); Smith v. State, 487 So. 2d 1088 (Fla. 5th DCA 1985).2
3. As the state concedes, the trial judge’s finding that the defendant’s crime involved an unfactored pattern of “violence” is belied both by the fact that the charge that the defendant was criminally responsible for an assault during the burglary was dropped as a part of the plea agreement, Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986), and because, in fact, a co-defendant and not Chenard was solely responsible for the assault which was the only violence in the case.
4. It is plainly impermissible to depart on the final ground stated by the lower court that “the sentencing guidelines recommendation is manifestly not sufficient to provide appropriate retribution, deterrence or time for rehabilitation of the defendant.” See State v. Scott, 508 So. 2d 335 (Fla.1987). However deeply we may agree with the trial judge that three years imprisonment is insufficient for the defendant’s third commission of the very serious crime of residential burglary — the purposeful invasion of another’s home — that is a decision of those who have formulated and approved the guidelines with which we are powerless to interfere.
Accordingly, the sentence under review is reversed and the cause remanded to re-sentence the defendant within the guidelines.
Reversed.
. Rousseau, which is determinative as to two of the factors assigned below, was decided well after the trial court ruled.
. We confess that it is difficult to articulate the reason for the difference in treatment of the two fact patterns; Applying the test of the validity of a reason for departure we set forth in Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985), review denied, 479 So. 2d 118 (Fla.1985) that is, that the reason (a) must not be encompassed within the guidelines and (b) must provide a rational basis for a heavier or more lenient sentence, we note that neither escalating nor repetitive offenses are necessarily built into the guidelines computation itself. As to the other factor, we simply do not understand, although we must follow the cases which so hold, why it is more worthy of punishment if one begins with minor and builds up to more serious crimes than that he both starts and continues in the big time.
FERGUSON, Judge
(concurring).
I wholeheartedly concur in all of the Chief Judge’s opinion except note 2.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Wilson, 523 So. 2d 178 (Fla. 3d DCA 1988)…. 2d 404 (Fla.1985); State v. Jackson, 478 So. 2d 1054 (Fla.1985). While, the trial judge’s disagreement with the proposed sentence under the guidelines is an invalid reason for departure, Scott v. State, 508 So. 2d 335 (Fla.1987); Chenard v. State, 510 So. 2d 363 (Fla.3d DCA 1987), drug dependency may be a clear and convincing reason to mitigate a recommended sentence, see Barbera v. State, 505 So. 2d 413 (Fla.1987). Accordingly, the sentence is reversed and remanded for a written order explicitly setting…
-
State v. Orion Hopkins, 520 So. 2d 301 (Fla. 3d DCA 1988)…sentencing result of any particular case unfair or unjust, that is a decision which has been made and implemented by the legislature, the supreme court and the sentencing guidelines commission, over which we have no authority. See Chenard v. State, 510 So. 2d 363 (Fla. 3d DCA 1987) (no power to impose apparently desirable upward deviation from guidelines when not supported by recognized reasons).…
-
Waychoff v. State, 624 So. 2d 392 (Fla. 2d DCA 1993)…tate, 581 So. 2d 604 (Fla. 2d DCA 1991). See also Marshall v. State, 600 So. 2d 474 (Fla. 3d DCA 1992) (departure based upon extraordinary or egregious harm reversed where another perpetrator struck the victim, not the defendants); Chenard v. State, 510 So. 2d 363 (Fla. 3d DCA 1987) (departure based upon unfactored pattern of violence invalid where codefendant, not Che-nard, was solely responsible for assault). The only “evidence” supporting these reasons for departure consists of representations made by the…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Scott v. State, 508 So. 2d 335 (Fla. 1987)
- Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985)
- Mitchell v. State, 507 So. 2d 686 (Fla. 1st DCA 1987)
- Newland v. State, 508 So. 2d 486 (Fla. 3d DCA 1987)
- Elbert Roy Smith v. State, 487 So. 2d 1088 (Fla. 5th DCA 1986)
- Ellerby v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986)
- Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986)
- Bettye Grindle v. State, 486 So. 2d 689 (Fla. 3d DCA 1986)