KENNETH E. BRUTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Bruton appealed his sentences for obtaining property by worthless check, which departed upward from guidelines. This is the second appeal after the trial court again failed to provide legally sufficient reasons for departure, so the court reversed and remanded for resentencing within the guidelines range.
The trial court's stated reasons for departure were insufficient as a matter of law. The court reversed and remanded, directing that on resentencing the trial court must impose sentences within the guidelines range because it had failed to properly depart from guidelines on two separate occasions.
[1] A trial court's reasons for upwardly departing from sentencing guidelines must be clear and convincing.
[2] A defendant's status on parole at the time of the offense is factored into sentencing guidelines and is an impermissible ground for departure.
Previewing 2 of 5 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“Consideration of a defendant's status on parole is factored into the guidelines and as such is an impermissible ground for departure.”
Establishes that parole status cannot be used to justify departure from sentencing guidelines as it is already incorporated into the guidelines calculation.
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Join FLexlaw to unlock all legal intelligenceBruton pleaded guilty to four counts of obtaining property by worthless check. He had a criminal history dating to 1971, including prior probation rev…
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NIMMONS, Judge.
This is another sentencing guidelines case. Appellant appeals from his sentences which upwardly depart from the sentence range called for by the guidelines scoresheet. Previously, this court in Bruton v. State, 489 So. 2d 1195 (Fla. 1st DCA 1986), reversed appellant’s sentences and remanded for resentencing because of the trial court's failure to state written reasons for departure.
Appellant pled guilty to four counts of obtaining property for a worthless check, and was sentenced to three three-year terms; two of which would run consecutively, and three years of probation to follow. The guidelines called for a sentence range of 2½ to 3x/2 years. As stated above, no written reasons were provided and we were therefore compelled to reverse and remand for resentencing. On remand, the trial court imposed the same sentences and gave the following reasons for departure:
The Defendant’s criminal history dates back to 1971 and he has been placed on probation before and unable to make that probation. That probation was revoked. Subsequent thereto the 1980 commitment to the Department of Corrections by this Court for a period of five (5) years. He was paroled from incarceration for that sentence on January 25, 1983. Therefore, he was on parole at the time of the commission of the current offenses. This Court is of the opinion that the Defendant will continue his life of crime as has been demonstrated in the past and it is only a matter of time how long this Court can protect society before he is again released.
Therefore, under the present release system of the Department of Corrections of the State of Florida, prisoners are only serving one-half or less of the time the trial court sentenced them to incarceration which completely violates the rationale for imposing sentencing guidelines on trial courts.
Therefore, this Court exceeds the guidelines and imposes the same sentence as originally sentenced.
The above reasons for departure cannot be sustained as “clear and convincing.” Consideration of a defendant’s status on parole is factored into the guidelines and as such is an impermissible ground for departure. Williams v. State, 493 So. 2d 48 (Fla. 2d DCA 1986). Neither is it proper to consider the possible effect of gain time on the sentence imposed. Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986). Finally, the reasons cannot be supported on the basis of the timing of the offenses relative to his earlier release on parole. The current offenses were committed approximately twenty-two months after his release on parole. Compare Harmon v. State, 506 So. 2d 500 (Fla. 1st DCA 1987).
We REVERSE and REMAND for resentencing. The trial court having failed in this case to properly depart from the guidelines sentence on two occasions, the trial court, in resentencing the appellant, shall impose sentences within the guidelines range.
SHIVERS and THOMPSON, JJ„ concur.
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Larry v. State, 527 So. 2d 883 (Fla. 1st DCA 1988)…for departure. In Hogan v. State, 529 So. 2d 1127 (Fla. 1st [*885] DCA 1987) and at 1128 (on rehearing), this court held that a defendant’s release from community control 11 months prior to the crime was a valid departure ground. In Bruton v. State, 510 So. 2d 1243 (Fla. 1st DCA 1987) we found that timing of the offense was not a valid factor where the offense was committed 22 months after the defendant’s release on parole. The question is whether this court should permit the trial court to further extend thi…
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Ira J. Harmon v. State, 531 So. 2d 391 (Fla. 1st DCA 1988)…any, as is offered, and thereafter resentence defendant. This case is affirmed in all other respects. ERVIN, BOOTH and WENTWORTH, JJ., concur. . The two five-year sentences for aggravated assault are not at issue here. . Compare Bruton v. State, 510 So. 2d 1243 (Fla. 1st DCA 1987) (timing of offenses committed 22 months after release on parole cannot support departure).…
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Cummings v. State, 545 So. 2d 448 (Fla. 3d DCA 1989)…ssible because the judicial system does not control gain time. It is an administrative matter controlled by the Department of Corrections. Thompson v. State, 478 So. 2d 462, 464 (Fla. 1st DCA 1985); § 944.275, Fla. Stat. (1987); see Bruton v. State, 510 So. 2d 1243, 1244 (Fla. 1st DCA 1987); Brooks v. State, 490 So. 2d 173, 174 (Fla. 5th DCA 1986). For this reason and based on the state’s confession of error, the sentence is vacated and the cause is remanded for re-sentencing of the defendant in accordance wit…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986)
- Ira Joe Harmon v. State, 506 So. 2d 500 (Fla. 1st DCA 1987)
- Williams v. State, 493 So. 2d 48 (Fla. 2d DCA 1986)
- McCarthy & McCarthy, Inc. v. Se. Bank, N.A., 489 So. 2d 1195 (Fla. 4th DCA 1986)
- Bruton v. State, 489 So. 2d 1195 (Fla. 1st DCA 1986)