FABIAN MCINTYRE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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McIntyre was sentenced to 60 years for burglaries and thefts committed in a single criminal episode. The court reversed, holding that none of the trial court's five stated reasons for departing from sentencing guidelines were valid, and that the habitual offender statute alone cannot justify departure from guideline sentences.
The court held that none of the five reasons provided by the trial court constitutes a valid basis for departing from sentencing guidelines, and that the habitual offender statute alone is not an adequate reason to depart from guidelines. The court reversed the 60-year sentence and remanded for resentencing within the guidelines range.
[1] A trial court may not depart from sentencing guidelines based on an unprosecuted offense.
[2] A defendant's legal status, such as being out on bond, is already calculated into sentencing guidelines and cannot be used as a separate basis for departure.
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Join FLexlaw to unlock all legal intelligence“Because none of the five reasons assigned by the trial court is a valid basis for departing from the sentencing guidelines, see Scurry v. State, 489 So.2d 25 (Fla.1986), section 921.001(4)(a), Florida Statutes (1987); Florida Rule of Criminal Procedure 3.701, and the habitual offender statute, section 775.084, Florida Statutes (1987), is not, alone, an adequate reason to depart from the sentencing guidelines”
Establishes the core holding that none of the trial court's five reasons were valid and that the habitual offender statute alone cannot justify guideline departure
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Join FLexlaw to unlock all legal intelligenceMcIntyre was convicted of burglaries and thefts of an automobile and dwelling committed in a single criminal episode. The trial court sentenced him to…
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PER CURIAM.
Because none of the five reasons assigned by the trial court is a valid basis for departing from the sentencing guidelines,1 see Scurry v. State, 489 So. 2d 25 (Fla.1986), section 921.001(4)(a), Florida Statutes (1987); Florida Rule of Criminal Procedure 3.701, and the habitual offender statute, section 775.084, Florida Statutes (1987), is not, alone, an adequate reason to depart from the sentencing guidelines, Winters v. State, 522 So. 2d 816 (Fla.1988) (habitual offender statute is a basis on which to exceed the statutory maximum as long as the sentence does not exceed the sentencing guidelines); Whitehead v. State, 498 So. 2d 863 (Fla.1986), we reverse the sixty-year sentence entered on the appellant’s convictions for burglaries and thefts of an automobile and dwelling committed in a single criminal episode.
Reversed and remanded with instructions to enter a sentence which does not exceed the guidelines.2
. The trial court’s first reason for departure, that the defendant's reckless driving in fleeing the crime scene created a safety risk to others, is invalid because reckless driving, an unprosecut-ed offense, may not be considered for purposes of deviating from the guideline sentence. See Spivey v. State, 512 So. 2d 322, 323 n. 1 (Fla. 3d DCA 1987); Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985); Fla.R.Crim.P. 3.701(d)(11).
Reason two, that the timing of McIntyre's prior convictions and violation of probation and community control demonstrated a continuing and persistent pattern of criminal conduct, see Williams v. State, 504 So. 2d 392 (Fla.1987), is invalid because the defendant’s last felony conviction and probation violation occurred approximately three years prior to the instant charges.
The third reason, that McIntyre’s conduct showed an escalating pattern of criminal conduct, is incorrect. Rather than showing an increase in the nature and severity of the crimes, the pattern here, if any, evidenced a decrease in the severity of the offenses. See Gales v. State, 515 So. 2d 431 (Fla. 4th DCA 1987), Abt v. State, 504 So. 2d 548 (Fla. 4th DCA 1987).
Reason four improperly characterizes McIntyre's conduct, in stealing the car and then using it shortly thereafter to commit the crimes charged, as a "crime wave or binge” because the events were not a series of offenses necessary to a crime wave but, rather, were the result of one episode. See Campos v. State, 515 So. 2d 1358 (Fla. 4th DCA 1987),
The fifth and final reason for departure, that McIntyre was out on bond at the time of the offense, is also invalid because a defendant’s legal status is already calculated into the sentencing guidelines and may not be used again as a basis for departure. See Parsons v. State, 491 So. 2d 1247 (Fla. 2d DCA 1986).
. The guideline sentence is nine-to-twelve years of imprisonment.
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Llabona v. State, 557 So. 2d 66 (Fla. 3d DCA 1990)…elines, of “offenses for which there were no convictions and no charges.” Vantassell v. State, 512 So. 2d 181, 183 (Fla.1987); State v. Tyner, 506 So. 2d 405 (Fla.1987); Williams v. State, 500 So. 2d 501, 502-03 (Fla.1986); accord McIntyre v. State, 539 So. 2d 603, 604 n. 1 (Fla. 3d DCA 1989). In the present case coercing the minor to participate in the home invasion robbery was chargeable as contributing to the delinquency of a minor. See § 827.04(3), Fla.Stat. (1983). We are obliged to hold invalid that rea…
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Campbell v. State, 558 So. 2d 34 (Fla. 1st DCA 1989)…t on bond for a similar offense on which the defendant was not convicted has been held to be an invalid reason for departure.” See also Fisher v. State, 489 So. 2d 857, 858 (Fla. 1st DCA), review denied, 500 So. 2d 545 (Fla.1986); McIntyre v. State, 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 (Fl…
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Williams v. State, 545 So. 2d 302 (Fla. 3d DCA 1989)…n v. State, 535 So. 2d 671 (Fla. 1st DCA 1988); see also Williams v. State, 500 So. 2d 501 (Fla.1986); Coleman v. State, 521 So. 2d 265 (Fla. 2d DCA 1988), or unsupported by the record— escalating pattern of violent behavior.1 See McIntyre v. State, 539 So. 2d 603 (Fla. 3d DCA 1989); Larry v. State, 527 So. 2d 883 (Fla. 1st DCA 1988). On remand, the trial court should determine the correct guidelines range. Defense counsel challenged the truthfulness of the record of defendants’ prior convictions included in…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Winters v. State, 522 So. 2d 816 (Fla. 1988)
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)
- ABT v. State, 504 So. 2d 548 (Fla. 4th DCA 1987)
- Carpenter v. State, 515 So. 2d 431 (Fla. 4th DCA 1987)
- Leonel Campos v. State, 515 So. 2d 1358 (Fla. 4th DCA 1987)
- Parsons v. State, 491 So. 2d 1247 (Fla. 2d DCA 1986)
- Spivey v. State, 512 So. 2d 322 (Fla. 3d DCA 1987)