JAMES A. MUSGROVE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this sentencing appeal, the Florida District Court of Appeal reversed a departure sentence imposed above the presumptive guideline range, holding that the trial court failed to provide clear and convincing reasons for the departure and that neither stated reason was valid as a matter of law.
The court reversed because neither of the trial court's stated reasons for departure was valid. The "menace to society" finding was invalid as a matter of law because propensity to commit crimes derived solely from prior record cannot support a departure. The juvenile record reason was also invalid because Musgrove's juvenile record was not sufficiently extensive (only three clear adjudications equivalent to convictions, with only one felony) to warrant departure under controlling precedent.
[1] A finding that a defendant is a "menace to society" is not a valid reason for imposing a departure sentence when the only evidence supporting the finding is the defendant…
[2] Unscored juvenile offenses may be considered as a basis for departure from sentencing guidelines only if the juvenile record is extensive and the offenses were disposed o…
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“such findings as "utter disregard for the law" and "menace to society" are not valid reasons for imposition of a departure sentence where the only evidence to support the findings is the defendant's prior record.”
Establishes that propensity to commit crimes based on prior record alone cannot justify departure sentences
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMusgrove was sentenced above the presumptive guidelines range. The trial court provided two reasons for the departure: (1) Musgrove's substantial juve…
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PER CURIAM.
In this appeal of a sentence more lengthy than the presumptive sentence under the sentencing guidelines, the appellant contends, first, that the reasons given by the trial court for imposing a departure sentence were not clear and convincing and, second, that the extent of the departure sentence imposed is excessive. We agree with appellant’s first contention, and thus need not reach the second. We reverse and remand.
The trial court’s written statement of reasons for departure provides:
The Defendant has a substantial juvenile record involving theft and burglary offenses which are not scored on the guidelines score sheet. Upon a review of the Defendant’s entire record, including his juvenile record, the Court is convinced that the Defendant possesses a propensity toward theft and burglary and is a menace to society.
We find that this statement sets forth two separate reasons for departure, the first being the appellant’s unscored juvenile record and the second being that his propensity to commit crimes makes him a menace to society. The second reason is clearly invalid. Arguably, all repeat offenders possess a “propensity” to commit crimes, and it is well settled that such findings as “utter disregard for the law” and “menace to society” are not valid reasons for imposition of a departure sentence where the only evidence to support the findings is the defendant’s prior record. See, e.g., Keys v. State, 500 So. 2d 134 (Fla.1986); Williams v. State, 492 So. 2d 1308 (Fla.1986).
The fact that a defendant’s record reflects the commission of offenses which cannot be scored because the offenses were committed when the defendant was a juvenile may, of course, be a valid reason for departure under our Supreme Court’s rulings in Weems v. State, 469 So. 2d 128 (Fla.1985) and Williams v. State, 504 So. 2d 392 (Fla.1987). However, unscored 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 “rap sheet,” only three of which clearly and unambiguously reflect adjudications equivalent to conviction of an adult. Of the three offenses which resulted in adjudications of guilt, only one, a burglary of a dwelling, was unquestionably a felony. Accordingly, we are unable find adequate support in the record for the trial judge’s conclusion that appellant’s juvenile record is so “substantial” as to warrant imposition of a departure sentence. Cf. Weems v. State, where the defendant had a record of thirteen juvenile dispositions which were the equivalent of convictions.
Because neither of the trial court’s stated reasons for imposition of a departure sentence was valid in this case, we reverse and remand for resentencing within the recommended range provided by the sentencing guidelines. Williams v. State, 492 So. 2d 1308 (Fla.1986).
REVERSED and REMANDED for re-sentencing.
SHIVERS and ZEHMER, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989)…tilizing juvenile adjudications to depart from the sentencing guidelines. An extensive record of juvenile adjudications may provide sufficient reason for departure from the guidelines, Williams v. State, 504 So. 2d 392 (Fla.1987); Musgrove v. State, 524 So. 2d 715 (Fla. 1st DCA 1988), but three prior juvenile convictions are insufficient to support departure. Blue v. State, 541 So. 2d 736 (Fla. 1st DCA 1989); Musgrove v. State, 524 So. 2d 715 (Fla. 1st DCA 1988); Jones v. State, 501 So. 2d 665 (Fla. 1st DCA 1…1 / 2
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Blue v. State, 541 So. 2d 736 (Fla. 1st DCA 1989)…urts have found that “the fact that a defendant’s record reflects the commission of offenses which cannot be scored because the offenses were committed when the defendant was a juvenile may ... be a valid reason for departure....” Musgrove v. State, 524 So. 2d 715, 716 (Fla. 1st DCA 1988), citing Weems v. State, 469 So. 2d 128 (Fla.1985) and Williams v. State, 504 So. 2d 392 (Fla.1987). An unscored juvenile record may be considered as a basis for departure only “if the juvenile record is extensive, and only i…
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Crocker v. State, 568 So. 2d 116 (Fla. 5th DCA 1990)…ts have held that three prior juvenile convictions do not present a sufficient juvenile record to justify a departure sentence. Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989); Blue v. State, 541 So. 2d 736 (Fla. 1st DCA 1989); Musgrove v. State, 524 So. 2d 715 (Fla. 1st DCA 1988). These courts have concluded that in order to justify a departure sentence a defendant’s unscored juvenile record must be “extensive,” as was the case in Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984), approved, 469 So. 2d 12…
Authorities Cited
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Carter v. State, 510 So. 2d 930 (Fla. 5th DCA 1987)
- Cledius Orlando Jones v. State, 501 So. 2d 665 (Fla. 1st DCA 1987)
- Walker v. State, 519 So. 2d 1105 (Fla. 3d DCA 1988)
- Hyer v. State, 501 So. 2d 189 (Fla. 2d DCA 1987)
- White v. State, 501 So. 2d 189 (Fla. 5th DCA 1987)