TONY E. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tony Williams appealed his sentences for burglary, aggravated battery, and grand theft after pleading guilty. The trial court imposed sentences above the sentencing guidelines, but the appellate court found all reasons for departure invalid and reversed for resentencing within the guidelines.
The court held that each of the trial court's five reasons for departing from the sentencing guidelines was invalid and that Williams's sentences must be reversed and remanded for resentencing within the guidelines. The court found that references to criminal conduct and danger to society are impermissible when the defendant has no prior criminal record, factors relating to the instant offense cannot be used as aggravation for departure, and factors already weighed in the presumptive sentence cannot justify departure.
[1] A trial court may not depart from sentencing guidelines based on the defendant's criminal conduct when the defendant has no prior criminal record.
[2] Reasons for deviating from sentencing guidelines cannot include factors relating to the instant offense or prior arrests for which convictions have not been obtained.
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“A violent pattern of conduct which indicates a serious danger to society is not a clear and convincing reason for departure under the facts shown by the record of this case.”
Establishes that without a prior criminal record, assertions of danger to society cannot justify departure from guidelines.
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Join FLexlaw to unlock all legal intelligenceWilliams pleaded guilty to burglary, aggravated battery, and grand theft. He had no prior criminal record or arrests. The offense involved burglarizin…
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CAMPBELL, Judge.
Appellant appeals from the sentences imposed upon him after he pled guilty to burglary, aggravated battery, and grand theft. We find that the trial court erred in sentencing appellant, and accordingly, reverse and remand for resentencing.
Appellant appeared at the sentencing hearing on a number of charges in addition to those which are the subject of this appeal. Other than these charges, appellant had no prior record and no prior arrests. The recommended guidelines sentence for the burglary and aggravated battery charges was five and one-half to seven years in prison. The trial court informed appellant that he would be sentenced within the guidelines on all of his pending charges except the burglary and aggravated battery charges. At the hearing, appellant entered a plea of guilty to all pending charges. Appellant was sentenced to fifteen years’ imprisonment on the burglary and aggravated battery charges, and five years’ imprisonment on the grand theft charge. All sentences were to run concurrently. The trial court submitted the following written reasons for departure:
1) The appellant’s severe criminal behavior indicates that he is a menace to society.
2) The appellant burglarized the victim’s home armed with an ice pick, struck the victim with the ice pick when discovered, and fled.
3) The appellant pled guilty to all charges.
4) The appellant has displayed a pattern of criminal behavior which indicates he is a menace to society.
5) Burglarizing aged victim with an ice pick reflects danger appellant poses to society.
This timely appeal followed. Appellant contends that the trial court relied upon impermissible reasons for departing from the sentencing guidelines.
We agree that the trial court’s first, fourth, and fifth reasons which relate to appellant’s “criminal conduct” are invalid. A violent pattern of conduct which indicates a serious danger to society is not a clear and convincing reason for departure under the facts shown by the record of this case. Williams v. State, 492 So. 2d 1308 (Fla.1986). Appellant had no prior criminal record before these charges. The trial court’s second reason for departure is also invalid. In Santiago v. State, 478 So. 2d 47 (Fla.1985), the court held that reasons for deviating from the guidelines shall not include factors relating to either the instant offense or prior arrests for which convictions have not been obtained. To allow those factors to be reconsidered as an aggravation permitting departure from the guidelines is contrary to the spirit and intent of the guidelines. Id.
Finally, the trial court’s third reason is based upon a factor which has already been weighed in arriving at a presumptive sentence, and cannot be relied upon as a valid reason for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
Because each of the trial court’s reasons for departure is invalid, appellant’s sentences must be reversed and the case remanded to the trial court for resentencing within the sentencing guidelines.
SCHEB, A.C.J., and SCHOONOVER, J., concur.
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Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Aniceto P. Santiago v. State, 478 So. 2d 47 (Fla. 1985)
- Todd v. State, 478 So. 2d 47 (Fla. 1985)