LARRY COTTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Departure sentences must be based on clear and convincing reasons stated in writing, and a defendant posing a threat to society, standing alone, is not a valid reason for departure.
The appellant pled guilty to drug possession charges and received departure sentences totaling ten years, exceeding the recommended guidelines range. …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Clear And Convincing Reasons For Departure cases and more on FLexlaw
DANAHY, Chief Judge.
The appellant challenges his departure sentences totaling ten years incarceration, based on a scoresheet reflecting a recommended range of community control or twelve to thirty months in state prison. We agree with the appellant that the trial judge failed to state clear and convincing reasons for the departure, and we reverse the sentences.
The appellant pled guilty to one charge of possession of marijuana and one charge of possession of marijuana with intent to sell and deliver. At the sentencing hearing, the trial judge read a portion of the appellant’s presentence investigation report describing the events which occurred and the evidence which was found when police executed a search warrant at the appellant’s residence. The trial judge then announced “I am exceeding the guidelines. I will note the defense objection. He is a threat to society, and society needs protection from him, and I should certainly think that we do.” Thereafter the trial judge entered an “order of aggravating circumstances” summarizing the portion of the PSI read at the hearing and concluding that the court was warranted in exceeding the sentencing guidelines.
A guidelines departure sentence must be based on clear and convincing reasons expressed in writing. State v. Mis-chler, 488 So. 2d 523 (Fla.1986). That the defendant poses a threat to society, standing alone, is not a valid reason for departure. Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA 1987). The matters recited in the “order of aggravating circumstances” do not support the conclusion that the appellant is any greater a threat to society than other persons guilty of crimes of this nature.
Accordingly, we reverse the sentences imposed on the appellant and remand for sentencing within the sentencing guidelines recommended range.
LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Harris v. State, 531 So. 2d 1018 (Fla. 2d DCA 1988)…itchell v. State, 521 So. 2d 341 (Fla. 2d DCA 1988) (escalating criminal activity); Paschall v. State, 501 So. 2d 1370 (Fla. 2d DCA 1987) (crime binge). Although, standing alone, danger to society is an invalid reason for departure, Cotton v. State, 516 So. 2d 1077 (Fla. 2d DCA 1987), it may be a valid reason under the circumstances in this case since it is coupled with other facially valid reasons for departure. See Washington v. State, 501 So. 2d 133 (Fla. 2d DCA 1987); Fuller v. State, 488 So. 2d 594 (Fla.…
-
Herminio Jesus Garcia v. State, 521 So. 2d 278 (Fla. 2d DCA 1988)…ch subjected the defendant to criminal sanction. Lerma v. State, 497 So. 2d 736 (Fla.1986). This court recently held that the fact that “the defendant poses a threat to society, standing alone, is not a valid reason for departure.” Cotton v. State, 516 So. 2d 1077, 1078 (Fla. 2d DCA 1987); see also, Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA 1987). The need to protect the community from the defendant has also been invalidated by this court as a basis for departure where, as here, that finding is not suppor…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA 1987)