ALFREDO MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alfredo Mitchell was convicted of robbery and sentenced to ten years imprisonment, which departed from the Florida sentencing guidelines range of 3.5 to 4.5 years. The appellate court affirmed his conviction but reversed the departure sentence, finding the trial court's reasons for departure legally invalid, and remanded for resentencing within the guidelines.
The trial court erred in departing from the sentencing guidelines. The stated reasons for departure—escalating criminal conduct and the victim's personal circumstances—are legally insufficient to justify departure.
[1] A departure sentence from sentencing guidelines is improper when based on criminal conduct that occurred subsequent to the offense for which the defendant is being senten…
[2] Escalating criminal conduct cannot justify a departure sentence when the offense being sentenced is not the basis for the finding of escalation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the appellant committed the robbery before his criminal conduct had "escalated." Since the appellant's robbery was not the basis for the trial court's finding, escalating criminal conduct is not supported by the record and, therefore, cannot justify a departure sentence.”
Establishes that subsequent criminal conduct cannot justify departure for an earlier offense
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMitchell was charged with and convicted by jury of robbery under Florida Statutes § 812.13. The trial court sentenced him to ten years in prison, exce…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
The appellant, Alfredo Mitchell, challenges the judgment and sentence entered after he was convicted of robbery. Although several issues have been raised on appeal, we find merit only in the appellant’s contention that the trial court erred in departing from the sentencing guidelines. We, accordingly, affirm his conviction but reverse the departure sentence imposed and remand for resentencing within the guidelines.
The appellant was charged by information with robbery in violation of section 812.13, Florida Statutes (1985). After a jury found the appellant guilty as charged, the trial court sentenced him to ten years in prison. The guidelines sentencing range was three and one-half to four and one-half years imprisonment. This timely appeal followed.
The trial court’s written reasons for departure indicate that the appellant had been convicted of crimes of aggravated assault and retail theft which had been committed approximately one week subsequent to the crime in this case. The trial court went on to say that these crimes were similar and show a pattern of escalating criminal behavior. Timing of the offense, see Franks v. State, 502 So. 2d 1369 (Fla. 2d DCA 1987), as well as an escalating course of criminal conduct, see Keys v. State, 500 So. 2d 134 (Fla.1986), certainly may be used to support a departure sentence when the appellant is sentenced for the subsequent crimes. Here, however, the appellant committed the robbery before his criminal conduct had “escalated.” Since the appellant’s robbery was not the basis for the trial court's finding, escalating criminal conduct is not supported by the record and, therefore, cannot justify a departure sentence. See State v. Mischler, 488 So. 2d 523 (Fla.1986).
Also included in the reasons for departure was the fact that the victim was a woman who was working alone at the time of the robbery and that she quit work after the crime because she did not want to get “hit” again as she had two children who were dependent upon her for support. These reasons are invalid. See Mathis v. State, 515 So. 2d 214 (Fla.1987); Early v. State, 516 So. 2d 24 (Fla. 3d DCA 1987).
Because we find all of the reasons for departure to be invalid, we remand for sentencing within the guidelines. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987). We affirm the trial court in all other respects. Affirmed in part, reversed in part, and remanded.
SCHEB, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harris v. State, 531 So. 2d 1018 (Fla. 2d DCA 1988)…se reasons are valid if established beyond a reasonable doubt. See State v. Mischler, 488 So. 2d 523 (Fla.1986); Fla.R.Crim.P. 3.701(d)(11). See also State v. Pentaude, 500 So. 2d 526 (Fla.1987) (egregious violation of probation); Mitchell 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 198…
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LEE v. State, 556 So. 2d 482 (Fla. 2d DCA 1990)…en v. State, 529 So. 2d 351 (Fla. 1st DCA 1988). Furthermore, even if an escalating pattern could be shown, it would not be a valid reason for departure as the conduct would have escalated after the commission of this offense. See Mitchell v. State, 521 So. 2d 341 (Fla. 2d DCA 1988). Conviction affirmed, sentence reversed, and remanded for sentencing within the range recommended by the sentencing guidelines. CAMPBELL, C.J., and DANAHY, J., concur.…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Mathis v. State, 515 So. 2d 214 (Fla. 1987)
- Bondurant v. Nickolas P. Geeker, 515 So. 2d 214 (Fla. 1987)
- Early v. State, 516 So. 2d 24 (Fla. 3d DCA 1987)
- Desmond H. Franks v. State, 502 So. 2d 1369 (Fla. 2d DCA 1987)
- Fla. Patient's Comp. Fund v. Coxon, 502 So. 2d 1369 (Fla. 2d DCA 1987)