PATRICK DAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patrick Day appeals his upward departure sentence for second-degree murder conviction, challenging two reasons given by the trial judge. The court affirms the sentence, holding that under Florida law, a departure sentence is valid if at least one of the stated reasons is valid, and Day failed to show both reasons were invalid.
The sentence is affirmed because Florida law provides that when multiple reasons exist to support a departure sentence, the departure shall be upheld if at least one circumstance justifies the departure, and Day failed to demonstrate that all reasons for departure were invalid.
[1] A departure sentence will be upheld when at least one circumstance or factor justifies the departure, regardless of the presence of other factors found not to justify dep…
[2] A defendant must show that each reason given for an upward departure sentence is invalid to obtain appellate relief.
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Join FLexlaw to unlock all legal intelligence“When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other factors found not to justify departure.”
Statement of the controlling statutory rule from section 921.001 that governs when departure sentences are valid
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Join FLexlaw to unlock all legal intelligenceDay was convicted of second-degree murder. The trial judge imposed an upward departure sentence based on two findings: (1) the crime evidenced an esca…
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ALLEN, J.
The appellant in this direct criminal appeal challenges his upward departure sentence following his conviction of second degree murder. We affirm his sentence because he is unable to show that each reason given for the departure sentence is invalid.
The trial judge gave two reasons for the upward departure sentence. He concluded that the crime evidenced “an escalating pattern of misconduct” and that the surrounding circumstances revealed “an elaborate scheme to cover up and perpetuate the nondisclosure of the victim’s death and the defendant’s involvement.”
The appellant correctly argues that the escalating pattern of conduct reason is not a valid reason for departure in this case because the current offense is neither temporally proximate nor similar to the earlier offenses. See State v. Darrisaw, 660 So. 2d 269 (Fla.1995).
The appellant’s argument as to the other reason for departure is that it is invalid in light of decisions such as Smith v. State, 620 So. 2d 187 (Fla.1993). We decline to address the appellant’s argument on this point because the argument he presents on appeal was not presented to the trial court and is therefore not preserved for appellate review. § 924.051, Fla. Stat. (1997). Although section 924.051 permits review of unpreserved sentencing errors that cause sentences to be “illegal,” see Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998), the error urged here is not reviewable on this basis because the supreme court has specifically indicated that sentences imposed pursuant to sentencing guidelines errors do not constitute “illegal” sentences. See Davis v. State, 661 So. 2d 1193 (Fla.1995); State v. Callaway, 658 So. 2d 983 (Fla.1995).
We are accordingly presented with a situation in which one reason for departure is invalid and the other is presumed to be valid because it is not subject to review. Prior to 1987, the harmless error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), was applied in this situation. See Albritton v. State, 476 So. 2d 158 (Fla.1985). But, in that year, the legislature amended section 921.001, Florida Statutes, to provide that “[w]hen multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other factors found not to justify departure.” This language, which remains a part of section 921.001, reflects the legislative intent that departure sentences may be reversed only upon a showing that each reason given for a departure sentence is invalid.
Because the appellant is unable to show that both of the reasons for departure are invalid, his sentence is affirmed.
BENTON and BROWNING, JJ., CONCUR.
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Maglio v. State, 918 So. 2d 369 (Fla. 4th DCA 2005)…e reasons exist to support a departure from a guidelines sentence, a departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other factors found not to justify departure. Day v. State, 746 So. 2d 1219, 1220 (Fla. 1st DCA 1999). Therefore trial court did not err in imposing an upward departure sentence. Based on the foregoing, the judgment and sentence are affirmed. FARMER and TAYLOR, JJ., concur.…
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State v. Maritza Fernandez, 927 So. 2d 939 (Fla. 3d DCA 2006)…sence of other circumstances or factors found not to justify mitigation. Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge. § 921.002(3), Fla. Stat. (emphasis added).3 See Day v. State, 746 So. 2d 1219, 1220 (Fla. 1st DCA 1999) (“[wjhen multiple rea [*942] sons exist to support a departure from a guidelines sentence” has been interpreted to reflect “the legislative intent that departure sentences may be reversed only upon a showing that each reaso…
Authorities Cited
- Chapman v. California, 386 U.S. 18 (U.S. 1967)
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- State v. Darrisaw, 660 So. 2d 269 (Fla. 1995)
- Smith v. State, 620 So. 2d 187 (Fla. 1993)