CYNTHIA MATTHEWS RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal affirmed Cynthia Matthews Rodriguez's burglary convictions but reversed her sentence, finding that several reasons given by the trial court for departing from sentencing guidelines were not supported by clear and convincing evidence or violated sentencing law.
The court affirmed the convictions but reversed the sentence, finding that only three of the seven reasons for departure were valid. The remaining four reasons either restated invalid rationales, violated sentencing law by impermissibly considering prior record or uncharged offenses, or lacked sufficient evidentiary support.
[1] A trial court's reasons for departing from sentencing guidelines must be clear and convincing.
[2] A sentencing departure reason that merely restates the need to protect society is invalid.
Previewing 2 of 6 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“Of the seven reasons we are able to discern from the departure order, we find only three are valid. The remaining four reasons are not clear and convincing as we explain.”
Establishes the core holding that most of the trial court's sentencing departure reasons were legally insufficient.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRodriguez was convicted of several burglary offenses, trafficking in cocaine, two counts of sale of cocaine, and possession of cocaine and marijuana. …
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DANAHY, Chief Judge.
We affirm appellant’s convictions for several burglary offenses, but reverse her sentence. In doing so, we agree that the several reasons given by the trial court to depart from the sentencing guidelines are not clear and convincing.
Of the seven reasons we are able to discern from the departure order, we find only three are valid. The remaining four reasons are not clear and convincing as we explain.
1. As its first reason, the trial court stated that the recommended guideline sentence was “inadequate for this defendant’s rehabilitation, for deterrence, and to protect society.” This reason is invalid. Scurry v. State, 489 So. 2d 25 (Fla.1986). The seventh reason given, that “defendant’s actions constitute a pressing danger to the community,” is a restatement of the need to “protect society” and, consequently, is also invalid.
2. The court’s third reason — “prior contact with the judicial system did not deter her from committing the same offense again” — is a departure based on prior record and violates Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
3. The fifth reason stated is a valid reason to depart inasmuch as it involves abuse of the position of trust which appellant held in regard to her children. Jakubowski v. State, 494 So. 2d 277 (Fla. 2d DCA 1986). There is, however, insufficient evidentiary support for this reason. Therefore, we cannot state that it meets the clear and convincing test. State v. Mischler, 488 So. 2d 523 (Fla.1986).
4. We also are unable to approve the sixth departure reason in which the court provided that “Defendant participated in the distribution of cocaine and marijuana to numerous other individuals.” Although charged with trafficking in cocaine, the jury found appellant guilty of two counts of sale of cocaine in addition to counts for possession of cocaine and marijuana. This sixth reason is impermissible because it is based upon a crime for which no conviction was obtained in violation of Florida Rule of Criminal Procedure 3.701(d)(ll). Furthermore, that “numerous other individuals” were involved is not substantiated in this record.
We reverse and remand for resentencing in accordance with Albritton v. State, 476 So. 2d 168 (Fla.1985), because the state has failed to carry its burden of showing that the same sentence would have been imposed without considering the foregoing invalid reasons.
Convictions affirmed; sentence reversed and remanded for resentencing.
FRANK and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Jakubowski v. State, 494 So. 2d 277 (Fla. 2d DCA 1986)