JOHNNIE B. STUBBS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnnie Stubbs was convicted of cocaine possession and received an upward departure sentence of two years incarceration above the sentencing guidelines. The Florida appellate court affirmed the suppression denial but reversed the sentence, finding that one of the trial court's departure reasons lacked clear and convincing evidence and was based on an erroneous legal assumption about the guidelines scoresheet.
The court affirmed the denial of the suppression motion but reversed the sentence and remanded for resentencing because the trial court's second reason for departure lacked clear and convincing evidence and was based on an erroneous assumption that the guidelines scoresheet precluded incarceration options.
[1] A trial court may depart from a sentencing guidelines sentence based on a defendant's continuing and persistent pattern of criminal activity and the timing of offenses in…
[2] A departure sentence may not be based on reasons that are not clear and convincing.
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“Neither the continuing and persistent pattern of criminal activity nor the timing of each offense in relation to prior offenses and release from incarceration or supervision are aspects of a defendant's prior criminal history which are factored in to arrive at a presumptive guidelines sentence. Therefore, there is no prohibition against basing a departure sentence on such factors.”
Establishes that courts may base upward departure sentences on criminal activity patterns and timing, which are not factored into the guidelines scoresheet.
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Join FLexlaw to unlock all legal intelligenceStubbs was convicted of possession of cocaine and sentenced to two years incarceration, an upward departure from the guidelines. The trial court justi…
The full statement of facts, procedural history, and disposition for this case are member content.
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NIMMONS, Judge.
The appellant was convicted of possession of cocaine and sentenced to a term of two years incarceration,1 an upward departure from the sentence called for in the sentencing guidelines scoresheet. He contends that the trial court erred in denying his motion to suppress and in departing from the guidelines sentence. We affirm the order denying suppression without further discussion. But we reverse the sentence and remand for resentencing.
The trial court gave the following reasons for departure:
1. Defendant has been incarcerated on at least 3 prior occasions for drug related offenses, and was released from prison less than 1 year when these offenses were committed. Prior periods of incarceration did not deter him from committing the same offense again. (See Jean v. State, 455 So. 2d 1083 (Fla. 2nd DCA 1984)).
2. Evidence at the trial demonstrated that the Defendant intends to use marijuana on a regular basis, without any excuse, except that he feels he has a “heart condition” which is improved by the use of marijuana. To place a defendant on probation who intends to continue using an illegal drug would be an exercise in futility and violate the required findings for placing a defendant on probation.
In Williams v. State, 504 So. 2d 392 (Fla. 1987), the Supreme Court stated:
Neither the continuing and persistent pattern of criminal activity nor the timing of each offense in relation to prior offenses and release from incarceration or supervision are aspects of a defendant’s prior criminal history which are factored in to arrive at a presumptive guidelines sentence. Therefore, there is no prohibition against basing a departure sentence on such factors.
Id. at 393. We believe that the reasons articulated by the trial judge in paragraph number one above fall within the category described above in Williams.2
However, the reasons set forth in paragraph number two are not clear and convincing. In the first place, there is no evidence in the record supporting the factual premise stated in the first sentence. In addition, the second sentence erroneously assumes that the guidelines scoresheet places the defendant in a cell which precludes incarceration. This is not so inasmuch as the defendant scored 59 points which placed him in the cell providing for “any nonstate prison sanction.” Thus, the court could have, without departure, sentenced the defendant to a period of incarceration in the county jail.
We are unable to conclude that the trial court would have, beyond a reasonable doubt, imposed the same sentence in the absence of the invalid reasons. We, therefore, reverse the sentence and remand for resentencing under Albritton v. State, 476 So. 2d 158 (Fla.1985).
Judgment affirmed, sentence reversed, and case remanded for resentencing.
SMITH, C.J., and ERVIN, J., concur. . Appellant was also sentenced to concurrent six months terms for possession of not more than 20 grams of cannabis and possession of drug paraphernalia, both misdemeanor offenses.
. We note that appellant relies in part upon our decision in Knight v. State, 501 So. 2d 150 (Fla. 1st DCA 1987). However, Knight was decided before the Supreme Court’s decision in Williams. Also, Knight did not involve, as here, the timing element of the instant offense relative to the defendant’s release from incarceration.
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Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988)…as the only person on duty at the business establishment during the early morning hours of the crime. A defendant’s recent release from prison is a valid reason for departure. See Larry v. State, 527 So. 2d 883 (Fla. 1st DCA 1988); Stubbs v. State, 522 So. 2d 444 (Fla. 1st DCA 1988). In this case, appellant had been released from incarceration less than seven months before commission of the instant offenses. In these circumstances, the recent release from prison rationale constituted a legitimate reason for…
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Larry v. State, 527 So. 2d 883 (Fla. 1st DCA 1988)…valid. The defendant was sentenced in 1978 on two robbery offenses to two consecutive life terms. He was released on parole 6 years later. Within 14 months after his release from prison, defendant committed the instant offenses. In Stubbs v. State, 522 So. 2d 444 (Fla. 1st DCA 1988), this court held that Stubbs’ release from prison less than one year prior to commission of the instant offense constituted a legitimate reason for departure. In Hogan v. State, 529 So. 2d 1127 (Fla. 1st [*885] DCA 1987) and at 1…
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Robinson v. State, 530 So. 2d 1085 (Fla. 4th DCA 1988)…6 So. 2d 34 (Fla. 2d DCA 1987); Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA), rev. denied, 519 So. 2d 986 (Fla.1987). Also cf. Jones v. State, 517 So. 2d 121 (Fla. 4th DCA 1987); Larry v. State, 527 So. 2d 883 (Fla. 1st DCA 1988); Stubbs v. State, 522 So. 2d 444 (Fla. 1st DCA 1988). We recognize that an earlier opinion of this court, Abt v. State, 504 So. 2d 548 (Fla. 4th DCA 1987), stated that the failure to rehabilitate the defendant was an invalid ground for departure. See also Fain v. State, 488 So. 2d…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- Knight v. State, 501 So. 2d 150 (Fla. 1st DCA 1987)