BRIAN LLOYD ELLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian Lloyd Ellis appealed his departure sentence imposed after pleading no contest to violating probation and committing three substantive offenses. The court held that three of the trial court's stated reasons for departure were invalid, and the remaining two reasons were insufficiently supported by the record. The court reversed and remanded for resentencing within the guidelines.
The court reversed the departure sentence because three of the five stated reasons were invalid as a matter of law, and the two remaining reasons (timing of offenses and escalating pattern of criminal activity) were not sufficiently supported by the record. The case was remanded for resentencing within the presumptive guidelines.
[1] A departure sentence is invalid if based on reasons already factored into the presumptive guidelines sentence, such as the substantial and egregious nature of a probation…
[2] The timing of offenses and an escalating, persistent pattern of criminal activity may serve as clear and convincing reasons for departure from sentencing guidelines, prov…
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Join FLexlaw to unlock all legal intelligence“Three of the stated reasons for departure, the substantial and egregious nature of the probation violation, the failure of past rehabilitation, and the fact that defendant committed the offense of grand theft while on probation for committing grand theft are invalid.”
Establishes which reasons for departure are invalid as a matter of law under controlling precedent.
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Join FLexlaw to unlock all legal intelligenceEllis was placed on probation in June 1987. He committed new substantive offenses eleven months later in May 1988, for which he pleaded no contest to …
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DANIEL, Chief Judge.
Defendant, Brian Lloyd Ellis, appeals the departure sentence imposed on him after he pleaded no contest to violating his probation and to committing three new substantive offenses. Defendant argues that the reasons given by the trial court for imposing a departure sentence are invalid and that he should have been sentenced within the guidelines. We agree and reverse.
Three of the stated reasons for departure, the substantial and egregious nature of the probation violation, the failure of past rehabilitation, and the fact that defendant committed the offense of grand theft while on probation for committing grand theft are invalid. See Scott v. State, 549 So. 2d 1385 (Fla.1989); Franklin v. State, 545 So. 2d 851 (Fla.1989); Lambert v. State, 545 So. 2d 838 (Fla.1989).
The fourth reason for departure is the timing of the offenses and the fifth reason is defendant’s escalating, persistent and continuing pattern of criminal activity. The Florida Supreme Court has held that these reasons may serve as clear and convincing reasons for departure because these aspects of a defendant’s prior criminal history are not already factored into the presumptive guidelines sentence. State v. Jones, 530 So. 2d 53 (Fla.1988); Tillman v. State, 525 So. 2d 862 (Fla.1988); Williams v. State, 504 So. 2d 392 (Fla.1987).
In recent cases, however, the supreme court has indicated that a departure from the sentencing guidelines is not permitted in any violation of probation case1 and, therefore, it is not clear whether these reasons may be considered in cases such as this where, in addition to being adjudicated guilty of violating his probation, the defendant has been adjudicated guilty of new substantive offenses. Even assuming, however, that a departure based on timing or on an escalating pattern of criminal activity is permitted, the record here does not support departure based on these reasons. As for timing, the defendant was placed on probation in June of 1987. He committed the new substantive offense eleven months later, in May of 1988. The commission of new offenses eleven months after being placed on probation is not sufficient to justify imposition of a departure sentence. See Jones. Compare White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986).
As for defendant’s pattern of criminal activity, in Jones, the supreme court ruled that in order to constitute a clear and convincing reason for departure, the sentencing court must recite the specific pattern of conduct evidencing defendant’s frequent contacts with the criminal justice system. The departure order here fails to comply with this mandate.
Since the written reasons do not support departure, defendant’s sentence is reversed and the cause remanded for resentencing within the presumptive guidelines.
REVERSED and REMANDED.
DAUKSCH and COWART, JJ., concur. . See Dewberry v. State, 546 So. 2d 409 (Fla.1989); Franklin.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Simmons v. State, 570 So. 2d 1383 (Fla. 5th DCA 1990)…o violation of probation and community control cannot be used as grounds for departure.”); Hall v. State, 517 So. 2d 692 (Fla.1988) (Victim injury is not a valid reason for departure because it is already factored into score sheet.); Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990); Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989) (Failure of rehabilitation is not a valid reason.). Reason number three is valid under Vanover v. State, 498 So. 2d 899 (Fla.1986). In Vanover, the defendant testified that t…
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Irizarry v. State, 578 So. 2d 711 (Fla. 3d DCA 1990)…tes “that any departure sentence for probation violation is impermissible if it exceeds the one-cell increase permitted by the sentencing guidelines.” Ree v. State, 14 F.L.W. at 565 (emphasis in original; citations omitted). See also Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990); Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989). More recently, in Wesson v. State, 559 So. 2d 1100 (Fla.1990), the court reversed a departure sentence where one of the reasons for departure was a prior, apparently unrelate…
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Jones v. State, 583 So. 2d 387 (Fla. 1st DCA 1991)…cing on previous drug offenses. We find all three reasons to be invalid. The first reason — unamenability to rehabilitation — has been found to be an invalid reason for departure. Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990); Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990); and Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989). The second reason— disrespect or disregard for the law, standing alone — has also been found to be an invalid basis for departure, as an inherent component of every crimi…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Franklin v. State, 545 So. 2d 851 (Fla. 1989)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- Tillman v. State, 525 So. 2d 862 (Fla. 1988)
- Dewberry v. State, 546 So. 2d 409 (Fla. 1989)
- White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986)
- Scott v. State, 549 So. 2d 1385 (Fla. 1989)