STATE OF FLORIDA, APPELLANT,
v.
BRUCE J. MCGRIFF, APPELLEE
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The State appeals a downward departure sentence imposed on McGriff after he pleaded nolo contendere to attempted robbery and battery/resisting arrest charges. The Florida District Court of Appeal reversed because the trial court's stated reasons for the departure from sentencing guidelines were legally invalid.
The trial court's four stated reasons for departure were all invalid: (1) the general statement that the cases did not require lengthy imprisonment is mere disagreement with guidelines; (2) absence of personal injury, property loss, and firearm use are factors already considered in the sentencing scoresheet; (3) mere entry of a guilty plea is insufficient to support cooperation as a basis for departure; and (4) the offenses were not committed in an unsophisticated manner and were not isolated incidents given McGriff's extensive prior record.
[1] A state's appeal of an unauthorized downward departure sentence is not barred by a failure to object to the oral articulation of departure reasons when the error is appar…
[2] A trial court's disagreement with the sentencing guidelines is not a valid reason for a downward departure sentence.
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Join FLexlaw to unlock all legal intelligence“Without at least one other valid reason, departure is unauthorized.”
Establishes the legal standard that valid reasons must support any sentencing departure from guidelines
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Join FLexlaw to unlock all legal intelligenceMcGriff entered a plea of nolo contendere to attempted robbery in one case and battery on a law enforcement officer and resisting arrest without viole…
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[*332] PARKER, Chief Judge.
The State of Florida appeals the downward departure sentence that the trial court imposed upon Bruce J. MeGriff after he entered a plea of nolo contendere to the charges of attempted robbery in Case No. 95-12172CFANO and to battery on a law enforcement officer and resisting arrest without violence in Case No. 95-18629CFANO. We reverse because the trial court’s reasons for departure are invalid. Because the sentencing error is an unauthorized departure, which is apparent on the face of the record, the state’s failure to object to the trial court’s failure to orally articulate the departure reasons is not fatal to its appeal of the downward departure sentence. See Tran v. State, 667 So. 2d 812, 814 (Fla. 2d DCA 1995).
The trial court listed four reasons for departure, none of which are valid. The first reason, that “these cases do not require a lengthy prison [term],” is an expression of the trial court’s disagreement with the sentencing guidelines. Without at least one other valid reason, departure is unauthorized. Scurry v. State, 489 So. 2d 25, 29 (Fla.1986). See also State v. Lerman, 624 So. 2d 849 (Fla. 2d DCA 1998).
The second reason the trial court gave was that there was no personal injury, no loss of property, and no firearm used. The second reason is invalid because these factors are taken into consideration when the scoresheet is completed. The attempted robbery charge means that no property was taken. Furthermore, the scoresheet provides for victim injury and for use of a firearm and, thus, these factors have been contemplated by the guidelines. See State v. Baker, 498 So. 2d 1031, 1032 (Fla. 1st DCA 1986); see also State v. Scott, 611 So. 2d 596, 597 (Fla. 2d DCA 1993) (lack of egregious circumstances was invalid reason for departure).
The third reason the court listed was that MeGriff cooperated in resolving the current offenses or other offenses. The third basis for departure is a listed mitigating factor; however, merely pleading guilty is not sufficient evidence to support this basis for departure. See State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985). There is nothing in the record to support that MeGriff cooperated to resolve these or any other offenses.
Finally, the fourth reason for departure was that the offenses were committed in an unsophisticated manner. We note that the trial court marked through the remaining portion of the printed language on the sentencing form which states that the offenses were “isolated incidents] for which the defendant has shown remorse.” The record does not support the trial court’s determination that the attempted robbery was committed in an unsophisticated manner. MeGriff drove up to some people on a side street and indicated that he had a weapon under his shirt and that he wanted their money and personal items. The people ran away. When he was stopped, he actually had a tire iron underneath his shirt. Additionally, McGrifPs prior record is extensive;1 therefore, it cannot be said that these were isolated incidents. Finally, the record does not establish that he showed any remorse for his actions. Accordingly, this also was an invalid reason for departure.
The trial court erred by imposing a downward departure sentence because the reasons for departure were invalid. Therefore, we remand this ease to the trial court with instructions to allow MeGriff to withdraw his plea; however, upon any resentencing, MeGriff must be sentenced within the guidelines. Scott, 611 So. 2d at 597.
Reversed and remanded.
CAMPBELL and NORTHCUTT, JJ., concur. . At the change of plea hearing, the prosecutor advised the trial court that MeGriff s prior record included four charges for sale of cocaine, five charges for possession of cocaine, two charges for grand theft auto, and eight various misdemeanor charges. The prosecutor also informed the court that while MeGriff was out on bond on the attempted robbery charge, he was picked up on possession of cocaine and loitering and prowling charges. Apparently, MeGriff entered a plea to the possession of cocaine charge for a time-served sentence.
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State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005)…ly, the record specifically demonstrates that the crime for which Ayers was convicted was not “an isolated incident.” A defendant’s extensive prior criminal record precludes a showing that an offense was “an isolated incident.” See State v. McGriff, 698 So. 2d 331, 332 (Fla. 2d DCA 1997) (“[The defendant’s] prior record is extensive; therefore, it cannot be said that these were isolated incidents.”). The fact that a defendant who has previously committed numerous offenses has not in the past committed the sam…
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State v. Gaines, 971 So. 2d 219 (Fla. 4th DCA 2008)…glary of a conveyance, three for burglary of a dwelling, five for larceny, one for possession of cocaine, and one for robbery. A downward departure sentence predicated upon section 921.0026(2)0 thus plainly cannot be sustained. See State v. McGriff, 698 So. 2d 331, 332 (Fla. 2d DCA 1997) (noting that in assessing a downward departure the current crime(s) cannot be considered isolated where the defendant’s prior record is “extensive”). State v. Randall, 746 So. 2d 550 (Fla. 5th DCA 1999), relied upon by the t…
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State v. Fontaine, 955 So. 2d 1248 (Fla. 4th DCA 2007)…ors.”1 Similarly, in State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005), the court said, “A defendant’s extensive prior criminal record precludes a showing that an offense was ‘an isolated incident.’” (emphasis added). See also State v. McGriff, 698 So. 2d 331, 332 (Fla. 2d DCA 1997). Here, Fontaine committed two misdemeanors (larceny and reckless driving) ten years earlier. That was his only criminal record. Having only two misdemeanor convictions ten years before the current offense does not prevent a…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985)
- State v. Baker, 498 So. 2d 1031 (Fla. 1st DCA 1986)
- State v. Elory T. Scott, 611 So. 2d 596 (Fla. 2d DCA 1993)
- State v. Lerman, 624 So. 2d 849 (Fla. 2d DCA 1993)
- Moore v. Singletary, 624 So. 2d 849 (Fla. 1st DCA 1993)
- Luc Quy Tran v. State, 667 So. 2d 812 (Fla. 2d DCA 1995)