WILLIE J. WALKER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Willie Walker appealed a ten-year sentence that exceeded the sentencing guidelines range of 4.5 to 5.5 years. The Florida appellate court reversed, finding the trial court's stated reasons for the upward departure lacked record support and were legally impermissible under sentencing guidelines law.
The court reversed the sentence, holding that the trial court's stated reasons were either unsupported by the record or legally impermissible. The protection of the public cannot serve as a valid departure reason when the prior record is already factored into the guideline calculation, and a single remote juvenile conviction does not constitute a clear and convincing reason for departure.
[1] A trial court may not depart upward from sentencing guidelines based on an extensive record of juvenile arrests and convictions not calculated on the scoresheet, absent r…
[2] A trial court may not depart upward from sentencing guidelines based on the defendant committing crimes shortly after being released from incarceration, absent record sup…
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Join FLexlaw to unlock all legal intelligence“there is no record support for the trial court's finding that the defendant had an extensive unscored record of juvenile convictions or that he committed crimes "shortly after being released from incarceration."”
Establishes that the factual premises for the sentence departure were not supported by the trial record.
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Join FLexlaw to unlock all legal intelligenceWalker was sentenced to ten years in prison. The trial court justified departing upward from the guideline range by citing: (1) an extensive record of…
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PER CURIAM.
We reverse the ten-year sentence of confinement imposed upon the defendant and remand the case to the trial court for the imposition of a sentence within the recommended guideline range of 4-V2 to 5-V2 years. The trial court’s stated reasons for its upward departure from the sentencing guidelines were that (1) the defendant has an extensive record of “arrests and convictions as a juvenile offender ... not calculated in the scoresheet,” (2) the defendant committed crimes “shortly after being released from incarceration,” and (3) the greater sentence is “necessary to protect the public from [the defendant’s] continuing crimes.”
First, as the State with commendable candor concedes, there is no record support for the trial court’s finding that the defendant had an extensive unscored record of juvenile convictions or that he committed crimes “shortly after being released from incarceration.” The record reflects only a single prior juvenile conviction some four and one-half years earlier, which does not constitute a clear and convincing reason for departure.1 See Weems v. State, 469 So. 2d 128 (Fla.1985) (extensive unscored juvenile convictions); Carter v. State, 510 So. 2d 930 (Fla. 5th DCA 1987) {significant unscored juvenile record).
Second, the trial court’s statement that the greater sentence was “necessary to protect the public from [the defendant’s] continuing crimes” is not a valid reason for departure because the only evidence to support this statement is the defendant’s prior record, which has already been factored in in computing the recommended punishment. Williams v. State, 492 So. 2d 1308 (Fla.1986); Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
See Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986) (threat to society impermissible); Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986) (threat to society impermissible reason to depart); Dowling v. State, 495 So. 2d 874 (Fla. 5th DCA 1986) (reason that “the departure is necessary for the protection of society” is impermissible); Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986) (“protection of the community at large” impermissible); Holden v. State, 487 So. 2d 1199 (Fla. 1st DCA 1986) (need for societal protection insufficient).
Reversed and remanded.
. Ironically, had the juvenile burglary conviction occurred within three years of the sentencing and thus been scored as a prior third-degree felony, the presumptive guideline sentence would have been 5-½ to 7 years. But because the single juvenile conviction was more remote in time, the trial court believed itself empowered to impose a still longer sentence.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Puffinberger v. State, 581 So. 2d 897 (Fla. 1991)…e record is extensive or serious, or if the number and nature of the dispositions, when considered in combination, amount to a significant record under the circumstances. Further, we agree with the Third District Court of Appeal in Walker v. State, 519 So. 2d 1105 (Fla. 3d DCA 1988), that a juvenile record should serve as a basis for departure only where the resulting departure sentence is no greater than that which the defendant would have received had the juvenile offenses been scored. Id. at 1105 n. 1. The…
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Smith v. State, 678 So. 2d 1374 (Fla. 4th DCA 1996)…e record is extensive or serious, or if the number and nature of the dispositions, when considered in combination, amount to a significant record under the circumstances. Further, we agree with the Third District Court of Appeal in Walker v. State, 519 So. 2d 1105 (Fla. 3d DCA 1988), that a juvenile record should serve as a basis for departure only where the resulting departure sentence is no greater than that which the defendant would have received had the juvenile offenses been scored. Id. at 1105 n. 1. The…
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Musgrove v. State, 524 So. 2d 715 (Fla. 1st DCA 1988)…juvenile record may be properly considered as a basis for departure only if the juvenile record is extensive, and only if the juvenile offenses were disposed of by adjudications equivalent to conviction of an adult. Weems v. State; Walker v. State, 519 So. 2d 1105 (Fla. 3rd D.C.A. 1988); Carter v. State, 510 So. 2d 930 (Fla. 5th D.C.A. 1987); Jones v. State, 501 So. 2d 665 (Fla. 1st D.C.A. 1987); White v. State, 501 So. 2d 189 (Fla. 5th D.C.A. 1987). In this case, seven entries appear on appellant’s juvenile…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986)
- Holden v. State, 487 So. 2d 1199 (Fla. 5th DCA 1986)
- Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986)
- Carter v. State, 510 So. 2d 930 (Fla. 5th DCA 1987)
- Dowling v. State, 495 So. 2d 874 (Fla. 5th DCA 1986)
- Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986)