STATE OF FLORIDA, APPELLANT,
v.
GERALD GREEN, APPELLEE
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The court held that the reasons provided by the trial court for departing downward from the sentencing guidelines were not clear and convincing.
Gerald Green was convicted of possession and sale of cocaine. The trial court departed downward from the recommended sentencing guidelines range, impo…
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PER CURIAM.
The state appeals the sentence imposed on Gerald Green.
Green was convicted of possession and sale of cocaine. The recommended sentencing guidelines range was five and one-half years to seven years. The trial court departed downward and sentenced Green to four and one-half years. The trial court gave two reasons for departure: first, four years had elapsed between Green’s prison release for prior convictions and commission of the instant offenses; and second, the offenses were not violent crimes involving a firearm.
On appeal the state argues that the reasons for departure are not clear and convincing. We agree and vacate the sentences and remand for resentencing.
The fact that Green did not engage in criminal activity during the four years between his release from prison and commission of the instant offense is not a valid reason for downward departure. See Hendrix v. State, 475 So. 2d 1218 (Fla. 1985); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985). Green argues that since a court may depart upward when the defendant persists in an escalating cause of criminal conduct, Keys v. State, 500 So. 2d 134 (Fla.1986), the court should be allowed to depart downward when the timing and pattern of his offenses show a decrease in criminal activity. However, Florida Rule of Criminal Procedure 3.701(d)(5)(b) indicates that if a person remains conviction free for ten years, not four, his prior record shall not be scored. The fact that these were nonviolent drug offenses committed without a gun is also not a clear and convincing reason upon which to base a downward departure. Hendrix; Caride.
Accordingly, we vacate the sentence and remand for resentencing within the guidelines recommended range.
SCHEB, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.
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State v. McMULLEN, 529 So. 2d 821 (Fla. 3d DCA 1988)…ines, it is eminently clear that the first three summarized grounds for departing from the guidelines were error. To begin with, the absence of criminal involvement for a period of time is not a valid reason for a sentence departure. State v. Green, 511 So. 2d 734 (Fla. 2d DCA 1987); State v. Cande, 473 So. 2d 1362 (Fla. 3d DCA 1985). Indeed, the complete absence of a prior record does not afford such a basis since the absence is already factored into the presumptive sentencing guidelines. Sanders v. State, 5…
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State v. Chapman, 805 So. 2d 906 (Fla. 2d DCA 2001)…has had no arrests since 1994, the trial court’s third reason for departing downward, is not a valid reason for departure because it is considered when scoring the sentencing guidelines. State v. Sachs, 526 So. 2d 48, 50 (Fla.1988); State v. Green, 511 So. 2d 734, 735 (Fla. 2d DCA 1987). Similarly, the fact that the DUI did not result in any personal injury does not support a downward departure because personal injury is taken into account by the guidelines. See Sachs, 526 So. 2d at 50; see also § 921.0024,…
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State v. Raskiewicz, 541 So. 2d 1217 (Fla. 2d DCA 1989)…ation of law. ” The trial court appears to have attached significance to the fact Raskiewicz committed no additional crimes after he was placed on probation. Absence of criminal activity is an invalid reason for a sentence departure. State v. Green, 511 So. 2d 734 (Fla. 2d DCA 1984). The guideline scoresheet takes into consideration any such misconduct or lack thereof. Sanders v. State, 510 So. 2d 296 (Fla.1987). We reverse the trial court’s order restoring Raskiewicz to probation with special conditions and…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985)