THE STATE OF FLORIDA, APPELLANT,
v.
MARVIN THEOTIS ASHLEY, APPELLEE
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Florida appealed a downward departure from the sentencing guidelines in a cocaine possession case. The trial court sentenced the defendant to 90 days instead of the guideline-recommended three years based on the defendant's youth, lack of prior drug convictions, and small drug quantity. The appellate court reversed, holding that none of the stated reasons for departure were legally valid.
None of the three reasons cited by the trial court are valid bases for downward departure from the sentencing guidelines. Age alone is insufficient without additional factors such as emotional immaturity or lack of intelligence; the quantity of drugs is an invalid reason for departure; and lack of prior drug convictions is an insufficient basis for downward departure.
[1] A defendant's youth is not a valid reason for downward departure from sentencing guidelines unless additional factors, such as emotional immaturity or lack of intelligenc…
[2] The quantity of drugs possessed by a defendant at the time of the offense is an invalid reason for downward departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“The defendant's age is not a valid reason for departure unless additional factors, such as emotional immaturity or lack of intelligence, are present.”
Establishes that age alone cannot support downward departure; additional mitigating factors are required.
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Join FLexlaw to unlock all legal intelligenceMarvin Theotis Ashley pleaded no contest to cocaine possession. The trial court departed downward from the three-year guidelines recommendation and se…
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PER CURIAM.
Pursuant to his submission of a plea of no contest, appellant Ashley was convicted of cocaine possession. The trial court departed downward from the guidelines recommendation of three years and sentenced Ashley to serve 90 days incarceration. The trial court stated as its reasons for departure Ashley’s youth, his lack of prior drug convictions, and the small amount of cocaine purchased. The state appeals the downward departure. We reverse because no reason enunciated for departure is valid.
The defendant’s age is not a valid reason for departure unless additional factors, such as emotional immaturity or lack of intelligence, are present. State v. Bryant, 546 So. 2d 1112 (Fla. 2d DCA 1989); State v. Riley, 530 So. 2d 1081 (Fla. 3d DCA 1988); but see State v. Davis, 538 So. 2d 537 (Fla. 2d DCA 1989). There is no evidence that Ashley possesses less intelligence or emotional maturity than any other twenty-nine year old individual.
The trial court’s second reason, the quantity of drugs in the defendant’s possession at the time of the offense, is also an invalid reason to depart. State v. Welker, 536 So. 2d 1017 (Fla.1988); State v. Koopman, 519 So. 2d 613 (Fla.1988); Atwaters v. State, 519 So. 2d 611 (Fla.1988); State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988); State v. Robinson, 530 So. 2d 1082 (Fla. 3d DCA 1988); State v. McCluster, 525 So. 2d 434 (Fla. 3d DCA 1988). The third reason, lack of prior drug convictions, is another insufficient basis for downward departure. See Sanders v. State, 510 So. 2d 296 (Fla.1987); Riley. We note that Ashley had several prior convictions, although they apparently were not drug related.
Finally, Ashley urges that the state waived its right to appeal by failing to object to the departure at the time of sentencing. A contemporaneous objection is necessary to preserve for appeal only those sentencing errors which “do not produce an illegal sentence or an unauthorized departure from the sentencing guidelines.” State v. Whitfield, 487 So. 2d 1045, 1046 (Fla.1986); see Forehand v. State, 537 So. 2d 103, 105 (Fla.1989). Thus, the state’s failure to object is of no consequence.
Accordingly, we vacate Ashley’s sentence and remand to the trial court with directions to afford Ashley an opportunity to withdraw his - plea. ' If appellant elects resentencing, the court should impose a sentence within the guidelines.
Reversed and remanded.
BASKIN and LEVY, JJ„ concur.
FERGUSON, Judge
(dissenting).
The first stated ground for departure— the defendant’s youth — could be a valid statutory basis for a departure from the sentencing guidelines. State v. Davis, 538 So. 2d 537 (Fla. 2d DCA 1989) (youthful age of defendant is a valid reason for departure); State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986) (youth of defendant in a given case may constitute a clear and convincing reason for downward departure). As the majority notes, this district has recognized lack of maturity as a valid ground for departure. See State v. Myers, 515 So. 2d 333 (Fla. 3d DCA 1987). Whether there was an observable basis for the trial court’s finding in this particular case, where a stated ground for departure was not the defendant’s age but his youth, presents a question of fact which, ordinarily, would not reflect in the record. The existence of that factual question is precisely the reason why there should have been a contemporaneous objection. State v. Whitfield, 487 So. 2d 1045, 1046 n. 2 (Fla.1986). Having failed to signal the trial court of the alleged sentencing error, the State is not entitled to appellate review of the point. Castor v. State, 365 So. 2d 701 (Fla.1978). This is not a case where each of the stated grounds for departure are, per se, unauthorized.
I would affirm.
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State v. Noe Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006)…ure sentence. There must also be evidence that the defendant is emotionally immature or lacks ordinary intelligence. State v. Gilson, 800 So. 2d 727, 730 (Fla. 5th DCA 2001); State v. Liceo, 707 So. 2d 1155, 1157 (Fla. 2d DCA 1998); State v. Ashley, 549 So. 2d 226, 226 (Fla. 3d DCA 1989). The defendant asserts that the psychological evaluation submitted to the sentencing court provides competent substantial evidence of the defendant’s emotional immaturity. The psychological evaluation of the defendant was pe…
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State v. Strawser, 921 So. 2d 705 (Fla. 4th DCA 2006)…to” those grounds specifically listed. We also note that, while age alone is not a valid reason to depart, age, coupled with immaturity or the inability to appreciate the consequences of an offense, may be a valid reason to depart. State v. Ashley, 549 So. 2d 226, 226 (Fla. 3d DCA 1989). [*708] Here, taken as a whole, the record reflects the required support for the downward departure. We cannot say that the sentence is an abuse of trial court discretion and, therefore, the judgment and sentence are affirmed…
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State v. Whiddon, 554 So. 2d 651 (Fla. 1st DCA 1989)…luded court from imposing lesser penalty under statute that was amended after the offense was committed but before trial). . Florida Rule of Appellate Procedure 9.140(c)(l)(I) permits the state to appeal an illegal sentence. . See State v. Ashley, 549 So. 2d 226, 226 (Fla. 3d DCA 1989); State v. Bryant, 546 So. 2d 1112, 1113 (Fla. 2d DCA 1989); State v. Davis, 537 So. 2d 192, 193 (Fla. 2d DCA 1989); State v. Riley, 530 So. 2d 1081, 1082 (Fla. 3d DCA 1988); State v. Collins, 482 So. 2d 388, 389 (Fla. 5th DCA…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (19 total)
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Atwaters v. State, 519 So. 2d 611 (Fla. 1988)
- Forehand v. State, 537 So. 2d 103 (Fla. 1989)
- Sanders v. State, 510 So. 2d 296 (Fla. 1987)
- Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986)
- State v. Welker, 536 So. 2d 1017 (Fla. 1988)
- State v. Myers, 515 So. 2d 333 (Fla. 3d DCA 1987)