WILLIAM MENDENHALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court's reasons for departing from a sentencing guidelines sentence must be clear and convincing and supported by the record.
[1] A trial court's written reasons for departing from a recommended guidelines sentence must be clear and convincing.
[2] A defendant's general danger to society, without additional evidence establishing beyond a reasonable doubt a future danger, is not a clear and convincing reason for depa…
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Join FLexlaw to unlock all legal intelligenceThe trial court departed from the recommended guidelines sentence, citing the defendant's danger to society, unlikelihood of rehabilitation, and intox…
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COWART, Judge.
This is another reversal of a sentence departing from the recommended guidelines sentence.
The trial court’s written reasons for departure were
1) The totality of the facts show the defendant is an ongoing danger to society with no likelihood of rehabilitation. Moore v. State, 483 So. 2d 37 (Fla. 1st DCA 1986).
2) The defendant has a pattern of drinking to excess and the defendant was drinking at the time of the offense. Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985).
Danger to society is not a clear and convincing reason for departure in this case. Keys v. State, 500 So. 2d 134 (Fla. 1986); Williams v. State, 492 So. 2d 1308 (Fla.1986); Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986). This does not mean that danger to society can never be a clear and convincing reason for departure. In Whitehead v. State, 498 So. 2d 863 (Fla. 1986) the court said that although some indicia of future danger to society is included within the guidelines,
Other evidence ... which establishes beyond a reasonable doubt that the defendant poses a danger to society in the future can clearly be considered justification for a departure from the recommended sentence.
498 So. 2d at 865. The record, however, does not support that reason in this case.
The unlikelihood of rehabilitation is not a valid reason for departure. Todd v. State, 503 So. 2d 451 (Fla. 5th DCA 1987); Williamson v. State, 496 So. 2d 886 (Fla. 2d DCA 1986).
Intoxication and drug dependency are not valid reasons for departure. Barbera v. State, 505 So. 2d 413 (Fla.1987). See also Scurry v. State, 489 So. 2d 25 (Fla. 1986) (quashing Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985), which the trial court cited in its second reason for departure in this case); Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985).
The departure sentence is vacated and the cause remanded with directions that a sentence be imposed within the recommended guidelines sentence. SENTENCE VACATED; CAUSE REMANDED.
DAUKSCH and ORFINGER, JJ., concur.
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Reed v. State, 192 So. 3d 641 (Fla. 2d DCA 2016)…95); Reid v. State, 488 So. 2d 913, 915 (Fla. 2d DCA 1986); Angle v. State, 604 So. 2d 34, 35 (Fla. 1st DCA 1992); Odom v. State, 561 So. 2d 443, 445 (Fla. 5th DCA 1990); Morgan v. State, 528 So. 2d 991, 992 (Fla. 4th DCA 1988); Mendenhall v. State, 511 So. 2d 342, 342 (Fla. 5th DCA 1987). The reasoning behind this line of cases was that no adequate litmus test- existed for assessing public dangerousness. Predicting whether a defendant would commit future crimes was too speculative. See Keys, 500 So. 2d at 13…
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Benson Price v. State, 519 So. 2d 76 (Fla. 2d DCA 1988)…the state’s contentions, we find no other evidence in the record which could clearly be considered justification for departure on the basis of “danger to society” as set out in Whitehead v. State, 498 So. 2d 863 (Fla. 1986), and Mendenhall v. State, 511 So. 2d 342 (Fla. 5th DCA 1987). The third reason is valid. Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984). The state concedes that the fourth reason is invalid. Failure to cooperate with law enforcement officials in identifying others involved in illegal d…
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Jory v. State, 647 So. 2d 152 (Fla. 5th DCA 1994)…ives. Somehow, the defendant is able to induce these children to participate in his world of perversion and crime. This defendant is not amenable to reasonable rehabilitation. See Bushy v. State, 556 So. 2d 1208 (1st DCA 1990); Mendenhall v. State, 511 So. 2d 342 (5th DCA 1987). Jory is unequivocal in his stance that he has done nothing illegal and that the State’s pursuit of the case stems from a “life-style persecution, a classic example of homophobia. ...” Jorjas recorded statements make clear his belief…
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 (12 total)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Barbera v. State, 505 So. 2d 413 (Fla. 1987)
- Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985)
- Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985)
- Elvin Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986)
- Moore v. State, 483 So. 2d 37 (Fla. 1st DCA 1986)
- Kimbler v. State, 496 So. 2d 886 (Fla. 1st DCA 1986)