BENSON PRICE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1988-01-29
No. 86-1519
DANAHY, C.J., and CAMPBELL and SCHOONOVER, JJ., concur.
519 So. 2d 76 Florida District Court of Appeal, Second District (1988) Negative Treatment
Cited by 16 cases

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Synopsis

Benson Price appealed his cocaine possession and delivery convictions and sentences. The appellate court affirmed the convictions but reversed the sentences due to invalid departure reasons used by the trial court, requiring resentencing.

Holding

The court held that the defendant must make a prima facie showing that prior convictions were uncounseled to shift the burden to the state. Regarding departure reasons, the court found that involvement of a minor and use of old juvenile offenses were valid reasons, but that protection of society and failure to cooperate with law enforcement were invalid reasons for departure.

Headnotes

[1] A defendant alleging the erroneous inclusion of points for uncounseled prior convictions on a sentencing scoresheet must make a prima facie showing that the prior convict…

[2] A defendant's involvement with a minor in a drug transaction can be a valid reason for a sentencing departure if the defendant exercised control and authority over the mi…

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Key Quotes

“If, at sentencing, the defendant has merely alleged the erroneous inclusion of points for un-counseled prior convictions in the sentencing scoresheet, he has the burden to make a prima facie showing that the prior convictions were uncounseled.”

Establishes the burden-shifting standard for challenging prior convictions as uncounseled

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Facts & Procedural History

Price was convicted of possession and delivery of cocaine. At sentencing, the trial court used a scoresheet that included prior convictions Price alle…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this appeal from convictions and sentences for possession and delivery of cocaine, the appellant raises five issues, three of which are without merit. We address the remaining two issues and reverse the sentences based only on the last issue — the departure reasons.

DEFENDANT’S BURDEN TO SHOW PRIOR CONVICTIONS UNCOUNSELED

The appellant contends that the trial court erred when it calculated in the score-sheet prior convictions that the appellant had alleged were uncounseled. The appellant, citing Smith v. State, 498 So. 2d 1009 (Fla. 2d DCA 1986), argues that once he alleged that his prior convictions were un-counseled, the state had the burden to show that the prior convictions were counseled.

The trial court ruled that it was the defendant’s burden to show, at sentencing, that the prior convictions were uncoun-seled. The state, agreeing with the trial court, cites to us Croft v. State, 513 So. 2d 759 (Fla. 2d DCA 1987).

At first glance, it might appear that Smith and Croft are contradictory. A closer reading of Smith and a careful inspection of our Smith file, however, show that the defendant there had done more than merely allege that a prior conviction was uncounseled. In Smith the defendant had record support for his prima facie showing of an uncoun-seled prior conviction, thus shifting the burden to the state to show that the prior conviction was either, in fact, counseled, or that there had been a valid waiver of counsel. The state in Smith failed to carry that burden. In Croft, the defendant alleged prior uncounseled convictions, but was not able to prove that allegation. The Croft defendant thus failed to make out even a prima facie case. Under both Smith and Croft, then, the trial court in the instant case committed no error in placing the initial burden upon the defendant at sentencing. Our decisions in Smith and Croft are consistent. We reiterate here: If, at sentencing, the defendant has merely alleged the erroneous inclusion of points for un-counseled prior convictions in the sentencing scoresheet, he has the burden to make a prima facie showing .that the prior convictions were uncounseled.

INVALID DEPARTURE REASONS.

Concerning the departure issue, although the written order explaining the reasons for departing is in the narrative, we glean the following reasons from that order: (1) A minor was involved with the appellant in one of the transactions for which the appellant was convicted; (2) departure was warranted for the protection of society; (3) juvenile offenses over three years old used to depart; and (4) the appellant failed to cooperate with the police in bringing others to justice.

We hold that on the facts before us, the first reason is valid in that the circumstances show that the appellant had enough control and authority over the minor that the minor would not have been involved in the crime but for the actions of the appellant. Santana v. State 507 So. 2d 680 (Fla. 2d DCA 1987); see also Von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985). The second reason is invalid based on Keys v. State, 500 So. 2d 134 (Fla.1986).

Furthermore, contrary to the state’s contentions, we find no other evidence in the record which could clearly be considered justification for departure on the basis of “danger to society” as set out in Whitehead v. State, 498 So. 2d 863 (Fla. 1986), and Mendenhall v. State, 511 So. 2d 342 (Fla. 5th DCA 1987). The third reason is valid. Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984). The state concedes that the fourth reason is invalid. Failure to cooperate with law enforcement officials in identifying others involved in illegal drug transactions is an inadequate basis to support departure. Jimenez v. State, 486 So. 2d 36 (Fla. 2d DCA 1986); Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985).

Since we cannot say that the state has carried its burden to show beyond a reasonable doubt that the court would have departed absent the invalid reasons, we remand the case to the trial court for re-sentencing under Albritton v. State, 476 So. 2d 158 (Fla.1985).

The convictions are affirmed; the sentences are reversed; and the case is remanded for resentencing.

DANAHY, C.J., and CAMPBELL and SCHOONOVER, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988)
    …had a right to counsel and did not waive his right to counsel. Leffew v. State, 518 So. 2d 1376 (Fla. 2d DCA 1988), Croft v. State, 513 So. 2d 759, 761 (Fla. 2d DCA 1987); Smith v. State, 498 So. 2d 1009 (Fla. 2d DCA 1986); see also Price v. State, 519 So. 2d 76 (Fla. 2d DCA 1988). The defendant has the burden of showing that the prior convictions were uncounseled. Croft at 761; Smith at 1010. In the instant case, the trial court committed reversible error when it failed to permit appellant the opportunity…
  • State v. Troehler, 546 So. 2d 109 (Fla. 4th DCA 1989)
    …duly entered judgment of conviction and sentence, however, is presumed valid, and a defendant attacking the validity of prior convictions has the burden of proving the alleged grounds by a preponderance of the evidence.” Id. at 761.1 Price v. State, 519 So. 2d 76, 77-78 (Fla. 2d DCA 1988), offers insight: A closer reading of Smith and a careful inspection of our Smith file, however, show that the defendant there had done more than merely allege that a prior conviction was uncounseled. In Smith the defendant…
  • Americo Nodal v. State, 524 So. 2d 476 (Fla. 2d DCA 1988)
    …1384 (Fla. 1st DCA 1986); Fla.R. Crim.P. 3.701(d)(ll). The trial court’s third reason for departure, “defendant intentionally involved his 12-year-old daughter in his cocaine trafficking business,” was a valid reason for departure. Price v. State, 519 So. 2d 76 (Fla. 2d DCA 1988) (trial court properly departed where “a minor was involved with the appellant in one of the transactions for which appellant was convicted” and “the minor would not have been involved in the crime but for the actions of the appell…

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