STATE OF FLORIDA, PETITIONER,
v.
PARIS D. VARNER, RESPONDENT
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A departure sentence may not be based on conduct for which the defendant has not yet been convicted.
[1] A trial court may not base a departure sentence on conduct that could have resulted in a criminal conviction but has not yet.
[2] The proper method for punishing collateral misconduct is to separately charge and convict the defendant for that misconduct.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of several offenses and received a departure sentence based on threatening a witness and total disregard for others' safet…
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KOGAN, Justice.
We have for review Varner v. State, 597 So. 2d 426 (Fla. 2d DCA 1992), based on express and direct conflict with Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984), Walker v. State, 496 So. 2d 220 (Fla. 3d DCA 1986), and Bannerman v. State, 544 So. 2d 1132 (Fla. 4th DCA 1989). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Varner was tried and convicted for shooting into a building, shooting into a vehicle, and aggravated assault. Prior to his trial, he allegedly threatened a witness. After conviction, the trial court entered a departure sentence based on total disregard of the safety of others and threatening a witness prior to trial. On appeal, the district court found both reasons invalid. As to witness tampering, the district court receded from its own prior case law on grounds that Rule of Criminal Procedure 3.701(d)(ll) prohibits departure based on an offense for which the defendant has not been convicted. Here, that offense was witness tampering.
While we acknowledge the State’s argument that the weight of authority supports its position, we find the arguments raised by Judge Altenbernd below to be the better reasoned approach to this issue. Had Var-ner been charged and simultaneously sentenced for witness tampering, the guidelines would not have permitted a sentence as great as the one he received. This result should not be permitted, because it fosters inconsistent sentencing based on similar facts. Such a state is contrary to the basic precepts underlying the sentencing guidelines.
Accordingly, we hold that departure may not be based on conduct that could have, but has not yet, resulted in criminal conviction. If the State wishes to punish such collateral misconduct, the proper method is to separately charge and convict. We disapprove the opinions in Williams, Walker, and Bannerman to the extent they are inconsistent with our views here. The decision below is approved.
It is so ordered.
BARKETT, C.J., and OVERTON, MCDONALD, SHAW, GRIMES and HARDING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Perry v. State, 714 So. 2d 563 (Fla. 1st DCA 1998)…ack of remorse. Appellant argues vigorously that the trial court was without authority to depart based upon appellant’s use of an alias in the original sentencing proceeding. Perry cites Barr v. State, 674 So. 2d 628 (Fla.1996) and State v. Varner, 616 So. 2d 988 (Fla.1993). In Varner, the Supreme Court held that “departure may not be based on conduct that could have, but has not yet, resulted in a criminal conviction.” 616 So. 2d at 988-989. Were we to reach the merits, appellant’s reliance upon these two c…
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Gusmane Glieye v. State, 727 So. 2d 266 (Fla. 3d DCA 1998)…PER CURIAM. We affirm appellant’s conviction. However, we accept the State’s confession of error regarding sentencing and reverse and remand for prompt resentencing within the guidelines range. See State v. Varner, 616 So. 2d 988 (Fla.1993); State v. Tyner, 506 So. 2d 405 (Fla.1987). The resentencing aspect of this opinion shall be acted upon by the trial court forthwith. Affirmed in part; reversed in part.…
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Smith v. State, 620 So. 2d 187 (Fla. 1993)…question of great public importance: Do defendant’s efforts to cover up a crime allow sentencing guidelines departure? We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the negative consistent with our opinion in State v. Varner, 616 So. 2d 988 (Fla.1993). The opinion below is quashed and remanded for reconsideration in light of Varner. It is so ordered. overton, McDonald, shaw, GRIMES, KOGAN and HARDING, JJ., concur. BARKETT, C.J., concurs specially with an opinion.…1 / 2
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
- Purvis Lee Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984)
- House OF Prayer OF Apostolic Faith, Inc. v. Watson, 496 So. 2d 220 (Fla. 3d DCA 1986)
- Bannerman v. State, 544 So. 2d 1132 (Fla. 4th DCA 1989)
- Paris D. Varner v. State, 597 So. 2d 426 (Fla. 2d DCA 1992)