MARK DANIEL WINKLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Daniel Winkler appeals his convictions for three counts of manslaughter by culpable negligence and one count of leaving the scene of an accident involving death, and challenges his 41-year sentence as an excessive departure from the 12-17 year guideline range. The appellate court affirms both the convictions and sentences, finding sufficient circumstantial evidence for the guilty verdict and valid departure reasoning based on Winkler's pattern of driving under the influence.
The court affirmed both the convictions and sentences, finding sufficient circumstantial evidence for the guilty verdict and that the trial court's departure from guidelines was supported by valid reasons, specifically a continuing and persistent pattern of criminal activity involving driving under the influence that escalated to homicide.
[1] A jury verdict of guilty may be based upon sufficient circumstantial evidence.
[2] An appellate court lacks the authority to review the extent of a departure from a guidelines sentence.
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Join FLexlaw to unlock all legal intelligence“After careful examination of the record, we find that there was sufficient circumstantial evidence upon which the jury could base its verdict of guilty.”
Establishes the court's conclusion that the convictions were supported by adequate evidence.
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Join FLexlaw to unlock all legal intelligenceWinkler was convicted of three counts of manslaughter by culpable negligence and one count of leaving the scene of an accident involving death. He was…
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EDWARD F. BOARDMAN, (Ret.) Judge.
Appellant Mark Daniel Winkler appeals his convictions and sentences for three counts of manslaughter by culpable negligence and one count of leaving the scene of an accident involving death. He was sentenced to forty-one years’ imprisonment. The recommended guidelines presumptive range was twelve to seventeen years. We affirm. After careful examination of the record, we find that there was sufficient circumstantial evidence upon which the jury could base its verdict of guilty.
Apellant urges it was error for the trial judge to sentence him far in excess of the recommended sentence. At the outset, we mention that this court does not have the authority to review the extent of the departure from a guidelines sentence. See Traver v. State, 502 So. 2d 1009 (Fla. 2d DCA 1987).
Appellant contends that the trial court did not provide “clear and convincing” reasons for departure. We agree with appellant that some of the trial court’s reasons for departure are invalid in that they either are based upon factors inherent in the offenses charged, see State v. Cote, 487 So. 2d 1039 (Fla.1986), or upon factors relating to prior arrests for which convictions had not been obtained. Fla.R.Crim.P. 3.701(d)(ll). Upon review of the record, however, we are convinced beyond a reasonable doubt that the trial court would have departed solely on the basis of its perception that appellant’s conduct was a continuing, persistent pattern of criminal activity, i.e., driving under the influence of alcohol, which escalated to the point that he was responsible for the killing of the three innocent people in this case. See Williams v. State, 504 So. 2d 392 (Fla.1987) (no prohibition against basing a departure sentence on continuing and persistent pattern of criminal activity or timing of each offense in relation to prior offenses and release from incarceration or supervision). Accordingly, we affirm appellant’s sentences. See Casteel v. State, 498 So. 2d 1249 (Fla. 1986).
We have considered and find no merit to any of the other points appellant raises regarding his convictions and sentences.
Affirmed.
CAMPBELL, A.C.J., and HALL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Onelio Silveira v. State, 525 So. 2d 429 (Fla. 1st DCA 1988)…valid concern over a continuing, consistent pattern of criminal behavior. This is an appropriate ground for departure under Williams v. State, 504 So. 2d 392 (Fla.1987); Brockington v. State, 506 So. 2d 495 (Fla. 5th DCA 1987); and Winkler v. State, 515 So. 2d 1017 (Fla. 2d DCA 1987). The trial court’s last sentence in its departure statement amounts to an invalid reason for departure. This is because appellant’s not being “a proper candidate for probation” and “a danger to society” is expressly linked to his…
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Williams v. State, 528 So. 2d 498 (Fla. 2d DCA 1988)…om the sentencing guidelines. We affirm. One of the trial court's reasons for the departure concerned defendant’s escalating pattern of criminal conduct, culminating in this case with murder. This is a valid reason for departure. Winkler v. State, 515 So. 2d 1017 (Fla. 2d DCA 1987). However, other reasons given by the trial court were clearly invalid and have been repeatedly so held in reported appellate cases. Nonetheless, we conclude beyond a reasonable doubt that the trial judge would have departed from t…
Authorities Cited
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Casteel v. State, 498 So. 2d 1249 (Fla. 1986)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Traver v. State, 502 So. 2d 1009 (Fla. 2d DCA 1987)