JACQUELYNE DENISE FREEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jacquelyne Freeman appeals her guidelines departure sentence of 300 months for attempted first-degree murder and a restitution order. The court reverses and remands, finding all three grounds for departure invalid and the restitution order unsupported by sufficient evidence.
All three grounds for departure were invalid: heightened premeditation improperly double-scores the premeditation element already included in the attempted first-degree murder charge; an escalating pattern of criminal conduct is inapplicable when prior offenses are neither temporally proximate nor similar to the conviction; and unscoreable adult prior offenses cannot support a departure sentence that exceeds what would result if those offenses had been scored. The restitution order must be vacated and remanded for an evidentiary hearing because unsworn assertions in a presentence report are insufficient evidence when the defendant objects.
[1] Premeditation, an element of a crime, cannot serve as a basis for a guidelines departure sentence when the crime itself includes premeditation.
[2] An escalating pattern of criminal conduct for departure sentencing purposes requires crimes to be in temporal proximity or related to each other.
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Join FLexlaw to unlock all legal intelligence“Heightened premeditation may not be a basis for departure when the crime, as here, includes premeditation as an element.”
Establishes that reusing a crime element as a departure ground constitutes improper double-scoring
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Join FLexlaw to unlock all legal intelligenceFreeman was convicted of attempted first-degree murder with a firearm. The guidelines sentencing range was 77⅝-128¾ months. The trial judge imposed a …
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FARMER, Judge.
Defendant appeals her guidelines departure sentence and the order imposing restitution. She was convicted of attempted first degree murder with a firearm. We reverse and remand for resentencing and an evidentiary hearing on the amount of restitution to be imposed.
According to the guidelines scoresheet, the sentencing range was 77⅝-128¾ months. In departing from this range with a sentence of 300 months, the trial judge gave three grounds: (1) a heightened premeditation, as evidenced by testimony at trial that defendant had returned to the scene of the crime “and again tried to kill [the victim] in front of a police officer;” (2) an escalating pattern of criminal conduct; and (3) unscoreable prior offenses. The second and third grounds for departure were based upon defendant’s 1982 shoplifting conviction and a 1982 conviction for hindering the apprehension of a criminal.
The first two grounds relied upon by the trial court are invalid. Heightened premeditation may not be a basis for departure when the crime, as here, includes premeditation as an element. State v. Obojes, 604 So. 2d 474 (Fla.1992). Defendant’s guidelines seoresheet tally included the premeditation element. Reusing premeditation as a basis for a departure effectually results in an improper double-scoring of the premeditation element.
The validity of the second ground for departure is controlled by State v. Darrisaw, 660 So. 2d 269 (Fla.1995), where the supreme court held that an escalating pattern of criminal conduct requires crimes in temporal proximity to each other or related crimes. As defendant’s prior offenses are neither in temporal proximity nor similar to the conviction, the second ground is equally invalid.
As to the third ground, although the supreme court held that prior unscorea-ble adult convictions are a valid reason for departure, see Smith v. State, 515 So. 2d 182, 184 (Fla.1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988), the holding is prior to the 1986 and 1987 amendments to sections 921.001(5) and 921.001(6), restricting appellate review of departure sentences. In Puffinberger v. State, 581 So. 2d 897, 899 (Fla.1991), the court held that a departure sentence based upon an extensive unscorea-ble juvenile record is invalid if the resulting departure sentence is greater than that which would have been imposed had the offenses been scored. When the prior uns-coreable offenses are adult rather than juvenile, there is the same potential for inconsistent sentencing in a departure sentence. Accordingly, we apply the Puffinberger holding to defendant’s prior unscoreable adult offenses. When the departure sentence is analyzed under Puffinberger, it is apparent that the prior unscoreable record is an invalid basis for departure. If the unscored offenses themselves had been scored, the permissible range would have been less than the departure sentence actually imposed.
We also agree that the restitution order is improper. Defendant objected at the sentencing hearing to the amounts of restitution set forth in the presentence investigation report and called the court’s attention to the necessity for the claimant to present evidence as to the amount. The amount of restitution being imposed must be supported by evidence. Langston v. State, 616 So. 2d 597 (Fla. 4th DCA), rev. denied, 626 So. 2d 206 (Fla.1993). Here the amount of restitution was based on an unsworn assertion in a presentence report. Such assertions are insufficient evidence as to the amount when the defendant objects, as here. Upon remand, the court shall afford defendant an evidentiary hearing on the amount of any restitution.
GLICKSTEIN and STONE, JJ., concur.
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Citator
Cited By
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Mitchell v. State, 789 So. 2d 1043 (Fla. 1st DCA 2001)…96). On remand, the fee may be reimposed after the appellant is provided notice and an opportunity to be heard on the fee’s amount. Id. Furthermore, the $2,200 restitution award is reversed because it was not supported by evidence. Freeman v. State, 663 So. 2d 675, 676 (Fla. 4th DCA 1995). However, restitution may be ordered after an evidentiary hearing. AFFIRMED in part and REVERSED and REMANDED in part. ALLEN, VAN NORTWICK and POLSTON, JJ., concur.…
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Knarich v. State, 932 So. 2d 257 (Fla. 2d DCA 2005)…n on the length of a departure sentence based on nonscoreable prior record imposed by our supreme court in Puffinberger applies as well to a departure based on adult offenses that are not scored because they are too remote in time. Freeman v. State, 663 So. 2d 675, 676 (Fla. 4th DCA 1995). Nonscoreable “Out-of-Sequence” Convictions The third circumstance in which a departure sentence is authorized based on prior convictions that are not scored under the guidelines involves the nonscoreable “out-of-sequence”…
Authorities Cited
- Puffinberger v. State, 581 So. 2d 897 (Fla. 1991)
- State v. Darrisaw, 660 So. 2d 269 (Fla. 1995)
- Smith v. State, 515 So. 2d 182 (Fla. 1987)
- State v. Andreas Obojes, 604 So. 2d 474 (Fla. 1992)
- H-CHH Assocs. v. Citizens for Representative Gov't, 485 U.S. 971 (U.S. 1988)
- Langston v. State, 616 So. 2d 597 (Fla. 4th DCA 1993)