JESUS RUIZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ruiz challenged his upward sentencing departure, arguing the trial court relied on invalid reasons. The appellate court affirmed the sentence, finding that even if two of the three stated reasons for departure were invalid, the remaining valid reason—escalating pattern of criminal activity—independently justified the departure.
The sentence is affirmed because the valid reason for departure—escalating pattern of criminal activity—independently justifies the upward departure, and the two invalid reasons are subsumed within this more inclusive valid reason. The sentence would have been the same without the invalid reasons.
[1] A conclusion that a person is a habitual offender is not a valid reason for departure from sentencing guidelines.
[2] A conclusion that a person is a career criminal incapable of rehabilitation may not be a valid reason for departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“It is settled that the conclusion that a person is a habitual offender is not a valid reason for departure”
Establishes that habitual offender status cannot support sentencing departure
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Join FLexlaw to unlock all legal intelligenceThe trial court imposed a sentence more severe than recommended by sentencing guidelines. The court justified the departure based on three reasons: (1…
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DANIEL S. PEARSON, Judge.
In imposing a sentence more severe than that recommended by the sentencing guidelines, the trial court gave as its reasons for departure that (1) the defendant is a habitual offender, (2) the defendant is a career criminal incapable of being rehabilitated, and (3) the defendant’s pattern of criminal activity has escalated. The trial court also stated in its sentencing order that its departure sentence would have been imposed for any one of these reasons.
It is settled that the conclusion that a person is a habitual offender is not a valid reason for departure, Whitehead v. State, 498 So. 2d 863 (Fla.1986), and certainly arguable that the closely related conclusion that a person is a non-rehabilitatable career criminal is not a valid reason for departure. Compare Hendrix v. State, 475 So. 2d 1218 (Fla.1985) and Giles v. State, 512 So. 2d 283 (Fla. 3d DCA 1987) and Harris v. State, 509 So. 2d 1299 (Fla. 1st DCA 1987) with Williams v. State, 504 So. 2d 392 (Fla.1987) and Brown v. State, 513 So. 2d 213 (Fla. 1st DCA 1987) and Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA 1987).
However, because, as the defendant concedes, an escalating pattern of criminal conduct will justify an upward departure, Keys v. State, 500 So. 2d 134 (Fla.1986); Harris v. State, 509 So. 2d 1299, the sentence imposed on the defendant will stand if it is shown beyond a reasonable doubt that the sentence would have been the same without the invalid reasons. Albritton v. State, 476 So. 2d 158 (Fla.1985).
While we fully recognize that the trial court’s statement that it would depart for any one of the three reasons given is not, standing alone, enough to establish beyond a reasonable doubt that the sentence would have been the same had it been imposed for the third reason only, Griffis v. State, 509 So. 2d 1104 (Fla.1987), we are otherwise convinced that such is the case. This is so because both the defendant’s status as a habitual offender and his status as a career criminal incapable of being rehabilitated— the two invalid reasons for departure — are subsumed by the more inclusive valid reason, the escalating pattern of criminal activity. It is thus clear to us — quite apart from the trial court’s self-serving statement — that the sentence would have been the same without the invalid reasons.
The defendant’s remaining point merits no discussion, and his conviction and sentence are, accordingly,
Affirmed.
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Rommell Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988)…ictim, see Johnson v. State, 517 So. 2d 792 (Fla. 3d DCA 1988); crimes for which the defendant was not convicted, see Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987); and the defendant’s lack of amenability to rehabilitation, see Ruiz v. State, 516 So. 2d 1057 (Fla. 3d DCA 1987), review denied, 525 So. 2d 880 (Fla.1988); Bogan v. State, 528 So. 2d 1341 (Fla. 3d DCA 1988); Tapia v. State, 509 So. 2d 354 (Fla. 2d DCA 1987); cf. Braggs v. State, [*655] 522 So. 2d 536 (Fla. 3d DCA 1988) — were invalid, and we…
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Onelio Silveira v. State, 525 So. 2d 429 (Fla. 1st DCA 1988)…have departed for the valid reasons stated earlier. This is because the final sentence is a conclusion based on the more inclusive valid reasons which came before it and, as such, is subsumed by those more inclusive valid reasons. See Ruiz v. State, 516 So. 2d 1057 (Fla. 3d DCA 1987). We are also convinced beyond a reasonable doubt that, absent the erroneous probation violation finding, the trial court would still have sentenced appellant outside the guidelines. Accordingly, the conviction and sentence are aff…
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R.L. Williams v. State, 544 So. 2d 1125 (Fla. 3d DCA 1989)…ish beyond a reasonable doubt that the departure sentence would have been the same had it been imposed in the absence of the invalid reasons. Davis v. State, 517 So. 2d 670 (Fla.1987); see Griffis v. State, 509 So. 2d 1104 (Fla.1987); Ruiz v. State, 516 So. 2d 1057 (Fla. 3d DCA 1987), rev. denied, 525 So. 2d 880 (Fla.1988). Thus, because three of the four reasons given are either invalid or unsupported by the record, the departure sentence for armed robbery must be reversed and remanded for resentencing. We a…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Griffis v. State, 509 So. 2d 1104 (Fla. 1987)
- Harris v. State, 509 So. 2d 1299 (Fla. 1st DCA 1987)
- Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA 1987)
- Brown v. State, 513 So. 2d 213 (Fla. 1st DCA 1987)