DENNIS EDWARD MAULDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dennis Maulden appealed his burglary and grand theft conviction after his initial appeal successfully challenged his sentencing departure from guidelines. On remand, the trial judge resentenced using partially invalid reasons, but the court affirmed because at least one valid reason for departure—escalating pattern of criminal conduct—remained sufficient to justify the sentence.
The court affirmed the sentence because at least one valid reason for departure—the defendant's escalating pattern of criminal conduct—was properly before the court and alone was sufficient to justify the sentencing departure, regardless of the invalid reasons also stated at resentencing.
[1] A reason for departure from a recommended guideline sentence, once held invalid on appeal, cannot be reevaluated and found valid on a subsequent appeal.
[2] A written notation on a scoresheet can fulfill the requirement of putting reasons for departure in writing.
Previewing 2 of 5 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“once a stated reason for departure is held invalid it cannot be reevaluated and found to be valid by the appellate court on a subsequent appeal”
Establishes the rule preventing revalidation of previously rejected sentencing reasons on remand
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Join FLexlaw to unlock all legal intelligenceMaulden was convicted of burglary of a dwelling, grand theft, and trespass, and initially sentenced to 15 years for burglary and 5 years concurrent fo…
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GARRETT, Judge.
Having been convicted of burglary of a dwelling, grand theft, and trespass, the appellant was sentenced to fifteen (15) years for the burglary and to five (5) years concurrent for the grand theft. In Maulden v. State, 514 So. 2d 370 (Fla. 4th DCA 1987), the appellant successfully argued that the trial judge erred in departing from the recommended guideline sentence, and the matter was remanded for resentencing. This court found only “the first, the emotional and psychological trauma to the victim” (emphasis added), of the stated reasons for departure was valid, which appeared with four (4) other stated reasons in the Order for Aggravation of Guideline Sentence.
One of the stated reasons rejected in the first appeal, “(t)he defendant’s pattern of committing new crimes shortly after a release from incarceration on several occasions,” was similarly stated, “(t)hat the present offense occurred shortly after the Defendant was released from prison,” as a reason at resentencing. Smith v. State, 526 So. 2d 1060 (Fla. 1st DCA 1988), dictates that once a stated reason for departure is held invalid it cannot be reevaluated and found to be valid by the appellate court on a subsequent appeal.
Shull v. Dugger, 515 So. 2d 748 (Fla.1987), prevents our consideration of “incarceration for prior similar offenses did not serve to deter future criminal behavior” as a reason for departure, as the same is found by us to be a newly stated reason contained in the second sentencing order. On the original scoresheet the trial judge noted, “(defendant ... shows an escalating pattern of criminal conduct,” but did not include such as a reason for departure on the separate sentence order. On the Order of Sentence prepared in conjunction with the resentencing, “(t)hat there is evidence of an escalating pattern of criminal conduct,” was a stated reason for departure. A written notation on a score-sheet has been held to fulfill the requirement of putting the reasons for departure in writing. Torres-Arboledo v. State, 524 So. 2d 403 (Fla.1988). We choose to consider the original scoresheet and sentence order to be a composite writing utilized by the trial judge to express his initial reasons for departure, and therefore, “escalating pattern of criminal conduct,”1 although not addressed in the first appeal, is not considered by us to be newly stated, and is found to be a valid reason, one recognized as a basis for departure. Keys v. State, 500 So. 2d 134 (Fla.1986).
Having provided a valid reason (one being sufficient) for departure at the original sentencing, the same remains valid for the purposes of this appeal. Abt v. State, 528 So. 2d 112 (Fla. 4th DCA 1988).
It appears beyond reasonable doubt that the trial judge would impose the same sentence upon a second remand irrespective of the finding of the additional invalid reason since the two other reasons stated at the second sentencing both relate to “an escalating pattern of criminal conduct,” Albritton v. State, 476 So. 2d 158 (Fla.1985), and accordingly, we affirm.2
STONE, J., and WESSEL, JOHN D., Associate Judge, concur. . The original scoresheet was prepared and signed on 7/24/86 and the original sentencing order was signed eighteen (18) days later. Since the initial panel referred to "emotional and psychological trauma” as being the first reason for departure, it is logical to conclude that those reasons stated in the prior original scoresheet were never addressed by them. Robinson v. State, 530 So. 2d 1085, 1086 (Fla. 4th DCA 1988).
. Chapter 87-110, Laws of Florida, does not relieve this court from making the determination of whether the trial court would resentence as it did. This matter predates the enactment of the statute which cannot be applied retroat tively. State v. McGriff, 537 So. 2d 107 (Fla.1989).
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Williams v. State, 581 So. 2d 144 (Fla. 1991)…oes not negate the possibility that it may also be established in other ways. We thus adhere to existing case law which approves departure upon an escalating pattern as to the severity of offenses which are strictly nonviolent. See Maulden v. State, 539 So. 2d 1165 (Fla. 4th DCA 1989); Simmons v. State, 483 So. 2d 530 (Fla. 1st DCA 1986). The fact that Williams progressed from the commission of misdemeanors to the third-degree felony of grand theft and finally to the instant second-degree felony of possession…
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Kirby v. State, 553 So. 2d 1290 (Fla. 1st DCA 1989)…oes not negate the possibility that it may also be established in other ways. We thus adhere to existing case law which approves departure upon an escalating pattern as to the severity of offenses which are strictly nonviolent. See Maulden v. State, 539 So. 2d 1165 (Fla.4th DCA 1989); Simmons v. State, 483 So. 2d 530 (Fla. 1st DCA 1986). As a final reason for departure the court stated that: ... In light of [appellant’s] continual eighteen (18) year history of writing worthless bank checks, there is insuffic…
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Bennie Lee Pearson v. State, 650 So. 2d 210 (Fla. 3d DCA 1995)…te v. Vanhorn, 561 So. 2d 584, 585 (Fla.1990); Keys v. State, 500 So. 2d 134 (Fla.1986). Moreover, “[a] written notation on the score-sheet has been held to fulfill the requirements of putting the reasons for departure in writing.” Maulden v. State, 539 So. 2d 1165, 1166 (Fla. 4th DCA), review denied, 551 So. 2d 462 (Fla.1989) (citing Torres-Arboledo v. State, 524 So. 2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988)); Fla.R.Crim.P. 3.701(d)(ll). The trial court, by noting on the…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- State v. McGRIFF, 537 So. 2d 107 (Fla. 1989)
- ABT v. State, 528 So. 2d 112 (Fla. 4th DCA 1988)
- Tarrence L. Smith v. State, 526 So. 2d 1060 (Fla. 1st DCA 1988)
- Robinson v. State, 530 So. 2d 1085 (Fla. 4th DCA 1988)
- Maulden v. State, 514 So. 2d 370 (Fla. 4th DCA 1987)