VICTOR RAYMOND JORY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reviewed a conviction for lewd assault and child sexual exploitation where the trial court imposed a 150-year sentence departing significantly from the 22-year guideline maximum. The court found the district court erred in upholding the departure on the basis that Jory was not amenable to rehabilitation and posed a danger to society, lacking sufficient evidentiary support.
The trial court's departure sentence must be vacated because the record does not contain sufficient evidence to support departure for the stated reason. Jory must be resentenced within the sentencing guidelines.
[1] A departure sentence from sentencing guidelines requires valid reasons supported by sufficient evidence in the record.
[2] A defendant's assertion of innocence does not, in itself, constitute a lack of remorse for purposes of departing from sentencing guidelines.
Previewing 2 of 4 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“lack of remorse cannot be inferred from either "the mere exercise of a constitutional right or a continuing assertion of innocence."”
Establishes the controlling legal standard from Mischler regarding what inferences can and cannot be drawn regarding remorse in sentencing.
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Join FLexlaw to unlock all legal intelligenceJory was convicted of lewd assault and promotion of a sexual performance by a child less than eighteen years of age. The sentencing guidelines provide…
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PER CURIAM.
We have for review Jory v. State, 647 So. 2d 152 (Fla. 5th DCA 1994), based on conflict of decisions. We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution, and quash the decision below.
Jory was convicted of lewd assault and promotion of a sexual performance by a child less than eighteen years of age. Jory, 647 So. 2d at 153. The sentencing range under the sentencing guidelines provided for a maximum sentence of twenty-two years in prison. The trial court imposed a sentence that totaled 150 years in prison to be followed by thirty years of probation, and gave several reasons for departing from the guidelines. Id.
On appeal, the district court found only one of the reasons for departure to be valid and upheld the departure sentence on that basis. Id. The district court found that there was adequate evidence to support the trial court’s finding that the defendant is not amenable to rehabilitation and poses a danger to society. Id.
In seeking review, Jory relies in part on State v. Mischler, 488 So. 2d 523 (Fla.1986). However, we find that the cases actually involve different factual circumstances. In Mischler, we held that lack of remorse cannot be inferred from either “the mere exercise of a constitutional right or a continuing assertion of innocence.” 488 So. 2d at 526. dory’s statements did not fall within either of these categories. Thus, the cases are distinguishable.
However, we do not agree with the district court that the record contains sufficient evidence to support departure for the reason stated. Thus, Jory’s sentence must be vacated and he must be resenteneed within the guidelines.
Accordingly, we quash the decision below and remand for proceedings consistent with this opinion.
It is so ordered.
GRIMES, C.J. and OVERTON, HARDING and WELLS, JJ., concur. ANSTEAD, J., concurs specially with an opinion, in which SHAW and KOGAN, JJ., concur.
ANSTEAD, Justice,
specially concurring.
Because I find that Judge Sharp’s dissenting opinion in the district court, Jory v. State, 647 So. 2d 152, 157-59 (Fla. 5th DCA 1994) (Sharp, J., dissenting), contains a thorough and accurate analysis of the ease, I would adopt that portion of her opinion discussing this issue as the opinion of this Court.
SHAW and KOGAN, JJ., concur. -
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Cited By
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Jory v. State, 699 So. 2d 820 (Fla. 5th DCA 1997)…, and we affirmed. See Jory v. State, 647 So. 2d 152 (Fla. 5th DCA 1994). However, the supreme court disagreed and reversed the defendant’s sentence with directions that the defendant be sentenced within the sentencing guidelines. See Jory v. State, 668 So. 2d 195 (Fla.1996). On May 7, 1996, the defendant was resen-teneed to fifteen years’ incarceration for counts I-V, each term to be served concurrently. On counts XI and XII, the defendant was sentenced to concurrent terms of six years’ incarceration to be…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Jory v. State, 647 So. 2d 152 (Fla. 5th DCA 1994)