JIMMY MCCLURE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jimmy McClure appealed his probation revocation and sentencing enhancement for drug offenses. The court affirmed the revocation but reversed the sentencing departure, finding none of the trial court's reasons for exceeding the guidelines were legally valid.
The court affirmed the revocation of probation based on the marijuana convictions, which constituted material violations. However, the court reversed the sentencing departure, finding none of the trial court's seven reasons for upward departure were legally valid under sentencing guidelines law.
[1] A defendant violates a material condition of probation by committing new offenses, such as sale and possession of marijuana with intent to sell.
[2] A trial court's reasons for upward departure from sentencing guidelines must be valid and established.
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Join FLexlaw to unlock all legal intelligence“It is clear that defendant violated a material condition of his probation by his convictions for sale and possession of marijuana with the intent to sell.”
Establishes the basis for affirming the probation revocation
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Join FLexlaw to unlock all legal intelligenceMcClure was placed on probation for prior offenses. While on probation, he was convicted of sale and possession of marijuana with intent to sell, cons…
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PER CURIAM.
Defendant appeals from the revocation of his probation and from the trial court’s upward departure from the sentencing guidelines.
We affirm the revocation of probation. It is clear that defendant violated a material condition of his probation by his convictions for sale and possession of marijuana with the intent to sell. The other reasons given in the order revoking probation were either not valid or not established and should be stricken.
We reverse the sentence and remand for resentencing. None of the trial court’s reasons for departing from the guidelines were valid. Those reasons were as follows. (1) The timing of the offenses for which defendant was put on probation and which constituted violations of his probation as compared to prior offenses which he committed in Alabama. This reason is insufficient because the Alabama offenses were committed approximately two years prior to the first of these Florida offenses. See Bruton v. State, 510 So. 2d 1243 (Fla. 1st DCA 1987). (2) Florida is a haven for drug smugglers and dealers. If this reason were sufficient, there could be a guidelines departure in any drug case. (3) Defendant “graduated” from his Alabama offenses. This reason was insufficient because no escalation of criminal conduct was shown to have occurred from the Alabama burglary offenses to these Florida drug offenses. (4) Defendant has “absolute disregard for obeying the law or any other authority including prison officials, probation officials, alcohol and drug treatment officials, or anyone else attempting to 'rehabilitate his life.” This reason is insufficient, see Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985). (5) Substantial state prison time provides the only chance for rehabilitating defendant. This reason constitutes, in substance, only disagreement with the guidelines. (6) There is no other means to deter defendant and others from criminal conduct. This reason is insufficient, see Allen v. State, 476 So. 2d 309 (Fla. 2d DCA 1985). (7) “While on probation the defendant continued his same course of conduct in dealing in drugs.” This reason is insufficient. See Aleman v. State, 498 So. 2d 967 (Fla. 2d DCA 1986) [in effect receding from Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984) ].
Upon remand the defendant shall be re-sentenced within the recommended guidelines range.
Affirmed in part, reversed in part, and remanded for resentencing and correction of the order revoking probation.
CAMPBELL, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bannerman v. State, 544 So. 2d 1132 (Fla. 4th DCA 1989)…lid and some invalid. The invalid reasons for departure included findings that the defendant did not tell the truth at his trial, Jones v. State, 501 So. 2d 178 (Fla. 4th DCA 1987); that he has shown an utter disregard for society, McClure v. State, 513 So. 2d 1119 (Fla. 2d DCA 1987); that he lacked remorse; and that he denied his guilt against the weight of witness testimony. State v. Mischler, 488 So. 2d 523 (Fla.1986). The valid reasons included the sentencing court’s finding that defendant used excessive…
Authorities Cited
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)
- Quintin Stacey Allen v. State, 476 So. 2d 309 (Fla. 2d DCA 1985)
- Bruton v. State, 510 So. 2d 1243 (Fla. 1st DCA 1987)
- Aleman v. State, 498 So. 2d 967 (Fla. 2d DCA 1986)