VINCENT ASHLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed and remanded a departure guidelines sentence because the trial court relied on several improper factors, leaving only two valid reasons for departure.
A trial court's departure from sentencing guidelines must be supported by clear and convincing reasons, and only unamenability to rehabilitation and escalating pattern of criminal conduct are proper bases for departure.
[1] Only unamenability to rehabilitation and escalating pattern of criminal conduct constitute proper bases for departure from sentencing guidelines; probationary status, hab…
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Join FLexlaw to unlock all legal intelligenceVincent Ashley was sentenced above the guidelines range based on seven stated reasons, including his probationary status, habitual offender status, pr…
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COBB, Judge.
Vincent Ashley appeals his departure guidelines sentence on the basis that the trial court did not provide clear and convincing reasons for the departure. The trial court’s bases for departure can be summarized as follows:
1. The defendant’s probationary status at the time of the offense;
2. The defendant’s unamenability to rehabilitation;
3. The defendant’s habitual offender status;
4. The defendant’s prior admission to participation in a first-degree murder, armed robbery, attempted armed robbery and burglary of a dwelling, for which he had been granted immunity;
5. Escalating pattern of criminal conduct;
6. The defendant’s behavior in prison;
7. That the defendant poses a threat to society. Of these seven reasons given for departure, only two are proper: The defendant’s unamenability to rehabilitation and his escalating pattern of criminal conduct. See Keys v. State, 500 So. 2d 134 (Fla.1986); Allen v. State, 12 FLW 1055 (Fla. 4th DCA June IT, 1987); McNealy v. State, 502 So. 2d 54 (Fla. 2d DCA 1987); heath v. State, 487 So. 2d 384 (Fla. 4th DCA 1986); Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986); Keen v. State, 481 So. 2d 1274 (Fla. 5th DCA 1986). Thus, this case is remanded for the trial court to consider whether it would depart from the recommended guidelines sentence regardless of the existence of the invalid reasons. See Albritton v. State, 476 So. 2d 158 (Fla.1985).
REVERSED and REMANDED.
DAUKSCH and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989)…F.L.W. 2756 (Fla. 5th DCA Nov. 30, 1989). (4) Failure of past rehabilitation was evidenced by violation of probation and community control. While this reason had previously been held by this court to be a good reason for departure, Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA 1987), rev. denied, 519 So. 2d 986 (Fla.1987), again under the broad specific language in Ree this appears to be an improper reason for imposing a departure sentence because the reason also arises out of, and is demonstrated and eviden…
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Robinson v. State, 530 So. 2d 1085 (Fla. 4th DCA 1988)…ied, 518 So. 2d 1273 (Fla.1987); McMillan v. State, 516 So. 2d 1064 (Fla. 4th DCA 1987), rev. denied, 525 So. 2d 879 (Fla.1988); Leath v. State, 487 So. 2d 384 (Fla. 4th DCA 1986); Pullens v. State, 516 So. 2d 34 (Fla. 2d DCA 1987); Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA), rev. denied, 519 So. 2d 986 (Fla.1987). Also cf. Jones v. State, 517 So. 2d 121 (Fla. 4th DCA 1987); Larry v. State, 527 So. 2d 883 (Fla. 1st DCA 1988); Stubbs v. State, 522 So. 2d 444 (Fla. 1st DCA 1988). We recognize that an earli…
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Ruiz v. State, 516 So. 2d 1057 (Fla. 3d DCA 1987)…8 (Fla.1985) and Giles v. State, 512 So. 2d 283 (Fla. 3d DCA 1987) and Harris v. State, 509 So. 2d 1299 (Fla. 1st DCA 1987) with Williams v. State, 504 So. 2d 392 (Fla.1987) and Brown v. State, 513 So. 2d 213 (Fla. 1st DCA 1987) and Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA 1987). However, because, as the defendant concedes, an escalating pattern of criminal conduct will justify an upward departure, Keys v. State, 500 So. 2d 134 (Fla.1986); Harris v. State, 509 So. 2d 1299, the sentence imposed on the def…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- LEE v. State, 486 So. 2d 709 (Fla. 5th DCA 1986)
- Alphonso McNEALY v. State, 502 So. 2d 54 (Fla. 2d DCA 1987)
- Keen v. State, 481 So. 2d 1274 (Fla. 5th DCA 1986)
- Leath v. State, 487 So. 2d 384 (Fla. 4th DCA 1986)