MARCUS DEON SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marcus Deon Smith appeals a departure sentence imposed in his absence after the appellate court had previously ordered resentencing. The court affirms in part and reverses in part, holding that the trial court erred by failing to conduct a hearing and imposing sentence without the defendant's presence, and clarifying which grounds for departure sentences are valid.
The court reversed and remanded because the trial court erred by failing to conduct a hearing and by imposing sentence in the defendant's absence. A valid ground for departure exists where the defendant's offenses demonstrate involvement in a continuing and persistent pattern of criminal activity based on temporal proximity, but departure based on victims' psychological trauma is invalid.
[1] A departure sentence imposed in the absence of the defendant is an error when the court has ordered resentencing.
[2] A defendant must be present and a full sentencing proceeding must be conducted when resentencing is ordered by an appellate court.
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Join FLexlaw to unlock all legal intelligence“Once this court directs resentencing, it is essential that the defendant be present and that a full sentencing proceeding be conducted.”
Establishes the procedural requirement that a defendant must be present during resentencing hearings ordered on appeal
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Join FLexlaw to unlock all legal intelligenceSmith pleaded guilty to fifteen burglary counts, fourteen grand theft counts, and one petit theft count. The trial court previously imposed illegal de…
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ERVIN, Judge.
Appellant, Marcus Deon Smith, appeals from a departure sentence imposed upon him in his absence after this court had ordered resentencing. We affirm in part and reverse in part. Appellant pled guilty to fifteen burglary counts, fourteen grand theft counts and one petit theft count. Erroneously, however, departure sentences which illegally exceeded the maximum statutory penalties for the crimes involved were twice imposed upon appellant. On a previous appeal to this court, the sentences were vacated and the case was remanded to the trial court for resentencing. Smith v. State, 513 So. 2d 1113 (Fla. 1st DCA 1987). On remand, the trial court failed to conduct a hearing and entered a departure sentence in the appellant’s absence. This was error. Once this court directs resentencing, it is essential that the defendant be present and that a full sentencing proceeding be conducted. See Griffin v. State, 517 So. 2d 669 (Fla.1987).
Because appellant will again be resentenced, and it is possible that the lower court may again consider a departure sentence, we consider it necessary to give certain cautionary directions to the trial court in light of the review standard set forth in Albritton v. State, 476 So. 2d 158 (Fla.1985).1 Of the three reasons previously given by the trial court, we agree that one was valid and another invalid. The departure based upon the reason that the defendant committed and was convicted of crimes which occurred while he was released on his own recognizance has been held valid in this district, see Snelling v. State, 500 So. 2d 328 (Fla. 1st DCA 1986); however, departure based upon the victims’ feelings or psychological trauma, as involved in this case, is invalid. See State v. Rousseau, 509 So. 2d 281 (Fla.1987).
As to the third reason given, “crime binge,” it is unclear from the record whether the trial court considered the instant offenses to constitute a crime binge due to the number of crimes the defendant committed within a relatively short period of time, or the temporal proximity of the commission of the crimes. Crime binge is not a clear and convincing ground for departure when each crime is calculated in determining the guideline sentence, and “[t]here are no additional facts that would justify departure.” Mathis v. State, 515 So. 2d 214, 216 (Fla.1987). See also State v. Rousseau, 509 So. 2d 281, 283 (Fla.1987). However, where the temporal proximity of the commission of the crimes demonstrates the “defendant’s involvement in a continuing and persistent pattern of criminal activity,” a valid ground for departure exists. State v. Jones, 530 So. 2d 53, 56 (Fla.1988).
REVERSED and REMANDED for further proceedings consistent with this opinion.
WENTWORTH and ZEHMER, JJ., concur. . Because the offenses were committed prior to the effective date of the 1987 amendment to Section 921.001(5), Florida Statutes, the amendment does not apply.
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Cited By
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Campbell v. State, 558 So. 2d 34 (Fla. 1st DCA 1989)…e, 539 So. 2d 603 (Fla. 3d DCA 1989); Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988); Paschall v. State, 501 So. 2d 1370, 1372 (Fla. 2d DCA 1987); Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986). The state’s reliance on Smith v. State, 532 So. 2d 70 (Fla. 1st DCA 1988), as authority for the first departure reason in this case, is misplaced. In Smith, the court noted that the defendant “committed and was convicted of crimes which occurred while he was released on his own recognizance.” 532 So. 2…
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Paschall v. State, 538 So. 2d 470 (Fla. 2d DCA 1989)…A]ppellant committed two of the offenses for which he was convicted in October 1984, three offenses were committed in November 1984, and finally appellant committed four more of the offenses in March 1985.” Id. The first district in Smith v. State, 532 So. 2d 70, 71 (Fla. 1st DCA 1988) aptly explained the distinction which is critical to the determination of the validity of this departure ground: Crime binge is not a clear and convincing ground for departure when each crime is calculated in determining the…
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Wise v. State, 582 So. 2d 776 (Fla. 1st DCA 1991)…ollows: [*778] The defendant engaged in a pattern of criminal activity which the court considers and characterizes as a ‘crime spree.’ The offenses were similar to each other, and they were related to each other in a temporal manner. Smith v. State, 532 So. 2d 70 (Fla. 1st DCA 1988). We feel that the trial court’s findings were insufficient. In State v. Jones, 530 So. 2d 53, 55 (Fla.1988), the supreme court said, “If the trial court’s order fails to recite a specific pattern of criminal conduct, then a defe…1 / 2
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- Griffin v. State, 517 So. 2d 669 (Fla. 1987)
- Mathis v. State, 515 So. 2d 214 (Fla. 1987)
- Bondurant v. Nickolas P. Geeker, 515 So. 2d 214 (Fla. 1987)
- Smith v. State, 513 So. 2d 1113 (Fla. 1st DCA 1987)
- Snelling v. State, 500 So. 2d 328 (Fla. 1st DCA 1986)