TOMMY ALEXANDER, A/K/A ANGUS MCCANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tommy Alexander appealed his above-guideline sentences, arguing the trial judge's reasons for departing from the recommended sentencing guidelines were insufficient. The Florida appellate court agreed, finding that all four reasons given for upward departure—probation violation, being a drug dealer, habitual offender status, and general public protection concerns—were invalid under sentencing guidelines law.
The court held that none of the four reasons given for departure—violation of probation (beyond one cell), drug dealer status, habitual offender designation, and general public protection concerns—were valid reasons to depart from the guidelines, and therefore the above-guideline sentences must be vacated and the case remanded for resentencing within the guidelines.
[1] A trial court may depart one cell from recommended sentencing guidelines without reason upon revocation of probation, but any further departure must be supported by clear…
[2] A fact that is an inherent component of a charged offense cannot serve as a basis for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“Any further departure must be supported by clear and convincing written reasons not related to the violation of probation.”
Establishes the legal standard for departure from guidelines when probation is violated; departure beyond one cell requires clear reasons unrelated to probation violation
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Join FLexlaw to unlock all legal intelligenceAlexander was originally on five-year probation for grand theft and resisting arrest with violence. He subsequently pled guilty to carrying a conceale…
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THREADGILL, Judge.
Tommy Alexander appeals his sentences in excess of the guidelines recommended range. We agree that the reasons given for upward departure by the trial judge are invalid. We therefore reverse and remand this case for resentencing.
Alexander was originally placed on five years probation for grand theft and resisting arrest with violence. Thereafter, he pled guilty to carrying a concealed firearm, possession of cocaine with intent to sell, possession of amphetamines, grand theft, and violation of probation. The recommended guidelines range was community control or twelve to thirty months incarceration. The trial judge departed from the guidelines and imposed a sentence of five years on each offense, to run concurrently. The judge gave four reasons for departure.
The first reason given was that Alexander had violated substantive provisions of probation by committing new offenses. When imposing a sentence after revocation of probation, a trial judge may depart one cell without giving a reason. Fla.R.Crim.P. 3.701(d)(14). Any further departure must be supported by clear and convincing written reasons not related to the violation of probation. Mitchell v. State, 488 So. 2d 911 (Fla. 2d DCA 1986); Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). Because the reason for departure is related to Alexander’s violation of probation, the departure in this case of more than one cell is invalid.
The second reason for departure was that Alexander was a drug dealer. This fact is an inherent component of one of the charges, i.e., possession of cocaine with intent to sell, and thus cannot be a basis for departure. See Fla.R.Crim.P. 3.701(d)(11); Reid v. State, 488 So. 2d 913 (Fla. 2d DCA 1986).
The third reason for departure was that Alexander was a habitual offender. However, he was never formally adjudicated by the trial judge to be a habitual offender. Because the judge used the phrase “habitual offender” in his written order, we assume he was considering the factors which appear in the habitual offender statute, i.e., appellant’s prior criminal record and danger to society. See § 775.084, Fla.Stat. (1985). In Whitehead v. State, 498 So. 2d 863 (Fla.1986), the supreme court held that the “objectives and consideration of the habitual offender statute are fully accommodated by the sentencing guidelines.” Consequently, the trial court’s statement that Alexander is a habitual offender is not a clear and convincing reason for departure.
The fourth reason given for departure was that the guidelines do not allow sufficient time for rehabilitation nor provide sufficient protection for the public. This is an invalid reason. The guidelines sentence is sufficient punishment and deterrence unless there are unusual circumstances. Teehan v. State, 488 So. 2d 132 (Fla. 3d DCA 1986).
Finding that none of the reasons given for departure are valid, we vacate the sen tence and remand for resentencing within the guidelines.
Reversed and remanded.
SCHEB, A.C.J., and RYDER, J., concur.
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Americo Nodal v. State, 524 So. 2d 476 (Fla. 2d DCA 1988)…n Hills-borough County ...,” is invalid. The fact that appellant is “a major cocaine trafficker” is “an inherent component” of appellant’s conviction for conspiracy to traffic in cocaine. Thus, it cannot be a basis for departure. Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987). Also, the trial court improperly relied on the fact that appellant had charges pending against him in Hillsborough County. A trial court may not depart from the sentencing guidelines based upon crimes for which no conviction has…
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Collins v. State, 535 So. 2d 661 (Fla. 3d DCA 1988)…e crime of trafficking in cocaine. Indeed, the state concedes that this was an invalid reason for the subject departure. See State v. Cote, 487 So. 2d 1039, 1039 (Fla.1986); Chirino v. State, 516 So. 2d 97, 98 (Fla. 3d DCA 1987); Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987); Banks v. State, 509 So. 2d 1320, 1321-22 (Fla. 5th DCA 1987). The judgments of conviction under review are affirmed; the sentences under review are reversed, and the cause is remanded to the trial court for resentencing within t…
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Adolf Alvin Mincey v. State, 563 So. 2d 811 (Fla. 2d DCA 1990)…ven by the trial court to support an upward departure from the guidelines were either invalid, or not supported by the record. Lozano v. State, 540 So. 2d 131 (Fla. 2d DCA 1989); Nodal v. State, 524 So. 2d 476 (Fla. 2d DCA 1988); Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987). We, accordingly, reverse and remand for the purpose of vacating one of the appellant’s convictions in each case and after recalculating the sentence for the remaining convictions, for resentencing within the guidelines. Shull v.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Teehan v. State, 488 So. 2d 132 (Fla. 3d DCA 1986)
- Jones v. State, 488 So. 2d 913 (Fla. 2d DCA 1986)
- Reid v. State, 488 So. 2d 913 (Fla. 2d DCA 1986)
- Mitchell v. State, 488 So. 2d 911 (Fla. 2d DCA 1986)