DAVID EUGENE GORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Eugene Gore appealed his sentence for aggravated battery, challenging both an eight-year prison sentence that exceeded sentencing guidelines and the imposition of court costs without notice or ability-to-pay determination. The court affirmed the departure sentence based on the timing of the offense shortly after release from prison, but struck the costs for lack of proper procedure.
The court affirmed the departure sentence because the timing of the offense in relation to release from prison, combined with the specific dates set forth in the trial court's order and the record, constituted a clear and convincing reason for departure from guidelines. However, the court struck the imposition of court costs because they were imposed without notice or a determination of ability to pay.
[1] The timing of a new offense in relation to prior offenses and release from incarceration can constitute a clear and convincing reason for departure from a presumptive gui…
[2] A trial court's order for departure must recite a specific pattern of criminal conduct to justify departure based on a defendant's pattern of criminal activity and the ti…
Previewing 2 of 3 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“If the trial court's order fails to recite a specific pattern of criminal conduct, then a defendant's pattern of criminal activity and the timing of the commission of the offenses cannot constitute clear and convincing reasons for departure from the presumptive guidelines sentence.”
Establishes the requirement from State v. Jones regarding what must be included in sentencing orders for departure from guidelines
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGore was convicted by jury of aggravated battery after fighting and cutting his opponent with a knife outside a Tampa bar early one morning. Gore had …
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THREADGILL, Judge.
David Eugene Gore appeals from a sentence which exceeded the guidelines recommendation and imposed costs without notice or a determination of ability to pay. We affirm the departure sentence but strike the imposition of costs.
A jury convicted the appellant of aggravated battery. The evidence at trial showed that the appellant had fought and cut his opponent with a knife early one morning outside of a Tampa bar. The appellant had been out of prison only four months after serving a six-year sentence for two counts of aggravated battery and one count of resisting arrest with violence.
The guidelines called for three-and-one-half to four-and-one-half years’ incarceration. The trial court, however, imposed eight years’ incarceration to be followed by four years’ probation. The sole written reason for departure was timing of the new offense four months after release from prison, citing Williams v. State, 504 So. 2d 392 (Fla.1987), as authority.
In Williams, the supreme court held that the timing of an offense in relation to prior offenses and release from incarceration is a clear and convincing reason for departure. In State v. Jones, 530 So. 2d 53 (Fla.1988), the supreme court stated that “[i]f the trial court’s order fails to recite a specific pattern of criminal conduct, then a defendant’s pattern of criminal activity and the timing of the commission of the offenses cannot constitute clear and convincing reasons for departure from the presumptive guidelines sentence.” 530 So. 2d at 55. The trial court’s order in the appellant’s case does not recite a specific pattern of criminal conduct, but does set forth the date of release from prison and the date of the new offense, and this combined with the record in this case supports the reason for departure. We therefore affirm the appellant’s sentence. See also Jones v. State, 553 So. 2d 702 (Fla.1989); Gibson v. State, 553 So. 2d 701 (Fla.1989). Compare State v. Simpson, 554 So. 2d 506 (Fla.1989) and Frederick v. State, 556 So. 2d 471 (Fla. 1st DCA 1990).
The appellant also contends that the trial court erred in imposing court costs without notice or a determination of his ability to pay. We agree and strike these costs without prejudice to the state to seek to have them reimposed after proper notice. Varela v. State, 550 So. 2d 40 (Fla. 2d DCA 1989).
Affirmed.
RYDER, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brown v. State, 580 So. 2d 340 (Fla. 2d DCA 1991)…State v. Jones, 530 So. 2d 53 (Fla.1988). However, the trial court’s order does not cite as a reason for departure, a continuing and persistent pattern of criminal activity, nor does the record in this case support such a finding, See Gore v. State, 559 So. 2d 347 (Fla. 2d DCA 1990). See also White v. State, 579 So. 2d 377 (Fla. 2d DCA 1991). The record shows three misdemean- or convictions, an attempted rape, and the current offense of manslaughter. The state concedes that the misdemeanors were uncounseled…
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Alpheus Eugene Thompson v. State, 571 So. 2d 62 (Fla. 5th DCA 1990)…al conduct. See also Brown v. State, 569 So. 2d 1223 (Fla. 1990); State v. Simpson, 554 So. 2d 506, 509 (Fla.1989); Lipscomb v. State, 15 F.L.W. 2227 (Fla. 5th DCA September 6, 1990); Smith v. State, 566 So. 2d 57 (Fla. 5th DCA 1990); Gore v. State, 559 So. 2d 347, 348 (Fla. 2d DCA 1990). They should provide grounds to depart upwards from the recommended guidelines sentence beyond the available bump-up.…
Authorities Cited
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- State v. Vaughn R. Simpson, 554 So. 2d 506 (Fla. 1989)
- Gibson v. State, 553 So. 2d 701 (Fla. 1989)
- Stingray Jones v. State, 553 So. 2d 702 (Fla. 1989)
- Frederick v. State, 556 So. 2d 471 (Fla. 1st DCA 1990)
- Varela v. State, 550 So. 2d 40 (Fla. 2d DCA 1989)
- Walls v. State, 550 So. 2d 40 (Fla. 2d DCA 1989)