PAULINE LEHMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Pauline Lehman appealed her perjury convictions and sentences, challenging the trial court's departure from sentencing guidelines. The appellate court reversed, finding the trial court improperly relied on the inherent component of the perjury offense itself as justification for the upward departure.
The trial court erred in relying on the willful commission of perjury during an official proceeding as a reason for departure, because willfully committing perjury is an inherent component of the perjury offense itself and cannot serve as a basis for upward departure.
[1] A trial court's reasons for departing from recommended sentencing guidelines must be supported by clear and convincing evidence in the record.
[2] A negotiated plea and sentence agreement cannot serve as a basis for departure from sentencing guidelines without clear and convincing evidence of the agreement and its t…
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“Willfully committing perjury during an official proceeding is an inherent component of the offense for which the appellant was being sentenced. Thus, the trial court erred in relying on the perjury as a reason for departure.”
This quote establishes the core legal principle that inherent elements of an offense cannot serve as a basis for sentencing departure.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLehman was charged with perjury and perjury by contradictory statements, entering pleas of nolo contendere to both counts. The sentencing guidelines r…
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PATTERSON, Judge.
The appellant challenges her judgment and sentences for perjury. She argues that the trial court’s reason for departing from the sentencing guidelines is invalid. We agree and reverse.
On May 16, 1990, the appellant was charged in count I with perjury in violation of section 837.02, Florida Statutes (1989), and in count II with perjury by contradictory statements in violation of section 837.021, Florida Statutes (1989). She entered pleas of nolo contendere to both counts and was adjudicated guilty. The recommended guidelines sentence was any nonstate prison sanction; however, the trial court sentenced the appellant on count I to five years in prison and on count II to a suspended prison term of five years and five years of probation to be served consecutively to the sentence in count I.
In its written reason for departure, the trial court stated that the perjury was especially egregious in this circumstance because “it took place in the context of a criminal trial involving the prosecution of the most serious criminal offense known to the criminal justice system, a prosecution for murder in the first degree in which death by electrocution is one of the possible penalties.” The court further stated that the appellant “willfully and intentionally committed perjury” at a second trial.
Willfully committing perjury during an official proceeding is an inherent component of the offense for which the appellant was being sentenced. Thus, the trial court erred in relying on the perjury as a reason for departure. See Synder v. State, 564 So. 2d 193 (Fla. 5th DCA 1990).
The state argues that this appeal is moot since the appellant only challenges the departure prison sentence and she has already been released from prison. There is no merit to this argument. As long as the appellant is on probation, she is at risk of further incarceration if she violates a condition of probation. Since the appellant has already served a harsher sentence than was permitted under the guidelines, we direct that she be discharged from probation.
Reversed.
SCHOONOVER, C.J., and DANAHY, J., concur.