STATE OF FLORIDA, APPELLANT,
v.
MICHAEL WARREN, APPELLEE
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The Florida Fourth District Court of Appeal reversed a trial court's downward departure from sentencing guidelines in a RICO and fraud case, finding that the reasons provided for the departure were legally insufficient under established precedent.
The court reversed the sentence, holding that none of the trial court's reasons for the downward departure were sufficient as a matter of law and remanding for resentencing within the guidelines.
[1] A downward departure from sentencing guidelines is legally insufficient when the reasons provided by the trial court are not supported by the facts or applicable law.
[2] Prosecutorial discretion in charging is limited only where impermissible motives, such as bad faith or a desire to prevent the exercise of constitutional rights, can be a…
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Join FLexlaw to unlock all legal intelligence“the reasons the trial court gave for the downward departure were insufficient as a matter of law”
Establishes the core holding that the trial court's stated reasons did not legally justify deviation from guidelines
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of one count of RICO, eleven counts of grand theft, and twenty-one counts of odometer fraud. The sentencing guidelines rec…
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KLEIN, Judge.
We reverse a sentence of probation, which constituted a downward departure from sentencing guidelines, because the reasons the trial court gave for the downward departure were insufficient as a matter of law.
Defendant was convicted of one count of RICO, eleven counts of grand theft and twenty-one counts of odometer fraud. The sentencing guidelines’ recommended range was twelve to seventeen years and the permitted range was nine to twenty-two years. At the sentencing hearing the court gave the defendant twenty-two years probation and orally stated a number of reasons, none of which would have justified the downward departure, even if they had been in writing, as required by Ree v. State, 565 So. 2d 1329 (Fla.1990), modified, State v. Lyles, 576 So. 2d 706 (Fla.1991), receded from in part, Smith v. State, 598 So. 2d 1063 (Fla.1992).
The first reason the court gave for the downward departure was that the state had selectively prosecuted defendant for odometer tampering because the state suspected, but could never prove, that defendant had his wife killed by a “clown” who delivered flowers to her. The prosecutor’s discretion in prosecuting is limited only where “impermissible motives may be attributed to the prosecution, such as bad faith, race, religion, or a desire to prevent the exercise of the defendant’s constitutional rights.” United States v. Smith, 523 F. 2d 771, 782 (5th Cir.1975), cert. denied, 429 U.S. 817, 97 S.Ct. 59, 50 L.Ed.2d 76 (1976), quoted with approval in State v. Bloom, 497 So. 2d 2 (Fla.1986). This was not selective prosecution.
The other reasons given by the court were that witnesses testified against defendant because they had been threatened with criminal charges, that defendant’s only prior conviction in 1985 was for odometer fraud, that defendant was not a threat to society, that defendant had an elderly mother who needed his support, and that defendant would not be able to provide restitution to the victims of his odometer tampering if he were incarcerated. Since we conclude that none of the reasons given by the court were sufficient, we reverse and remand for resentencing within the guidelines as we must under Pope v. State, 561 So. 2d 554 (Fla.1990). We reject defendant’s alternative argument that we should certify the same issue as we did in State v. Jones, 625 So. 2d 1224 (Fla. 4th DCA 1993), because in Jones the oral reasons given for the downward departure were valid, and in this case they were not.
Reversed.
WARNER and PARIENTE, JJ., concur.
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State v. Stephenson, 973 So. 2d 1259 (Fla. 5th DCA 2008)…slature to punish those with families to support less than those without families”). Specifically, the fact that a defendant has an elderly parent in need of support has been held to be an insufficient reason for downward departure. State v. Warren, 629 So. 2d 1014 ,1015 (Fla. 4th DCA 1993) (concluding that defendant’s need to support his elderly mother, among other things, was not sufficient reason for downward departure). Likewise, the courts have held that a defendant’s need to support his child is an inval…
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State v. Walker, 923 So. 2d 1262 (Fla. 1st DCA 2006)…ay place the burden of caring for the child on the taxpayers of this state, such a consideration cannot be employed in determining whether one defendant will be incarcerated while another will be given a nonincarcerative sentence”); State v. Warren, 629 So. 2d 1014, 1015 (Fla. 4th DCA 1993) (listing the fact that the defendant had an elderly mother who needed his support as one of several insufficient reasons for downward departure); see also State v. Chapman, 805 So. 2d 906, 907-08 (Fla. 2d DCA 2001) (noting…
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State v. Geoghagan, 27 So. 3d 111 (Fla. 1st DCA 2009)…ay place the burden of caring for the child on the taxpayers of this state, such a consideration cannot be employed in determining whether one defendant will be incarcerated while another will be given a nonincarcerative sentence”); State v. Warren, 629 So. 2d 1014, 1015 (Fla. 4th DCA 1993) (listing the fact that the defendant had an elderly mother who needed his support as one of several insufficient reasons for downward departure). Eighth, the trial court found this offense was “committed in an unsophistica…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- Abell v. United States, 429 U.S. 817 (U.S. 1976)
- State v. Bloom, 497 So. 2d 2 (Fla. 1986)
- State v. Lyles, 576 So. 2d 706 (Fla. 1991)
- United States v. Oakley G. Smith, 523 F.2d 771 (5th Cir. 1975)
- State v. Jones, 625 So. 2d 1224 (Fla. 4th DCA 1993)