JAMES LEROY HOPKINS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Hopkins appeals his resentencing for trespass with a deadly weapon and aggravated assault, challenging the trial court's departure from Florida sentencing guidelines. The appellate court reverses because one of the three reasons cited for departure—prior similar conviction—was improperly considered, as it had already been factored into the presumptive guidelines sentence.
The sentence is reversed because one of the three departure reasons—the prior similar conviction—was invalid, having already been factored into the presumptive guidelines range. Since the court cannot say beyond a reasonable doubt that this invalid reason did not affect the sentencing decision, remand for resentencing is required.
[1] A trial court may not depart from sentencing guidelines based on a prior offense that has already been factored into the presumptive guidelines sentence.
[2] If a trial court's departure from sentencing guidelines is based in part on an invalid reason, the sentence must be reversed and the cause remanded for resentencing unles…
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Join FLexlaw to unlock all legal intelligence“This prior offense had already been factored into the presumptive guidelines sentence and thus could not be considered again for the purposes of departure.”
Establishes the core legal error: prior convictions used in calculating guidelines cannot be reused as departure justifications
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFollowing a prior reversal of Hopkins's habitual offender sentence in 1985, he was resentenced to concurrent five-year and ten-year prison sentences f…
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PER CURIAM.
This is a sentencing guidelines-departure appeal brought by the defendant James Leroy Hopkins. Following our reversal of a previously imposed habitual offender sentence in this case, Hopkins v. State, 463 So. 2d 521 (Fla. 3d DCA 1985), the defendant was resentenced to concurrent five-years and ten-years imprisonment respectively for the crimes of trespass with a deadly weapon and aggravated assault. The presumptive sentencing guidelines range in this case was four-and-a-half to five-and-a-half years imprisonment.
We again reverse the sentence imposed on the defendant because, by the state’s own admission, one out of the three reasons given by the trial court for departing from the sentencing guidelines was entirely invalid — namely, that the defendant “has previously been convicted and sentenced to prison for a crime which is factually similar to the present case.” This prior offense had already been factored into the presumptive guidelines sentence and thus could not be considered again for the pur poses of departure. Williams v. State, 492 So. 2d 1308, 1309 (Fla.1986); State v. Mischler, 488 So. 2d 523, 525 (Fla.1986); Hendrix v. State, 475 So. 2d 1218, 1220 (Fla.1985). Moreover, we cannot say beyond a reasonable doubt that this invalid reason did not affect the trial court’s decision to depart from the sentencing guidelines— which, of course, means that the sentences under review must be reversed and the cause remanded for resentencing. State v. Young, 476 So. 2d 161 (Fla.1985); Albritton v. State, 476 So. 2d 158, 160 (Fla.1985).
We have not overlooked the defendant’s attack on the other two reasons given by the trial court for departing from the sentencing guidelines, but find no merit in the arguments presented. We will not burden this opinion with any discussion as to why this is so, as the argument, in our view, is precluded by the following authorities. State v. Pentaude, 500 So. 2d 526 (Fla.1987); Walker v. State, 496 So. 2d 220 (Fla. 3d DCA 1986); Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984), rev. denied, 471 So. 2d 44 (Fla.1985).
The sentences under review are, therefore, reversed and the cause is remanded to the trial court with directions to resentence the defendant.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hopkins v. State, 528 So. 2d 132 (Fla. 3d DCA 1988)…PER CURIAM. After we reversed for resentencing in the previous appearance of this case in Hopkins v. State, 511 So. 2d 437 (Fla. 3d DCA 1987), the trial judge entered the same departure sentence relying only on the grounds we had previously approved. There is no error in this determination. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987). Affirmed.…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
- State v. Young, 476 So. 2d 161 (Fla. 1985)
- Purvis Lee Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984)
- House OF Prayer OF Apostolic Faith, Inc. v. Watson, 496 So. 2d 220 (Fla. 3d DCA 1986)
- Parks v. State, 463 So. 2d 521 (Fla. 3d DCA 1985)