KARL I. NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Karl Nelson appealed his resentencing for DUI manslaughter and related offenses, challenging the trial court's imposition of an upward departure sentence. The court reversed the departure sentence because the trial court's stated reason—an escalating pattern of criminal conduct—was not supported by the record.
The court held that the trial court abused its discretion because the evidence did not support the stated reason for departure. The court affirmed the denial of motions to correct sentencing error but reversed the departure sentences and remanded for resentencing within the appropriate guidelines range.
[1] A trial court abuses its discretion when it imposes an upward departure sentence not supported by the record.
[2] A Heggs resentencing entitles a defendant to a de novo sentencing hearing.
Previewing 2 of 5 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“However, any departure must have been supported by written reasons existing at the time of the original sentencing.”
Establishes the legal requirement that departure sentences must be based on reasons that existed at the time of original sentencing, not developed later.
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Join FLexlaw to unlock all legal intelligenceNelson was convicted in 1995 of two counts of DUI manslaughter, two counts of DUI causing serious bodily injury, and driving with a suspended license.…
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SALCINES, Judge.
Karl I. Nelson appeals the departure sentence imposed by the trial court upon his resentencing under the dictates of Heggs v. State, 759 So. 2d 620 (Fla.2000). Nelson also appeals the trial court’s denial of two motions to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b). The trial court’s orders denying the motions to correct sentencing error are affirmed without further discussion. However, because the reason given by the trial court for the imposition of the upward departure sentence was not supported by the record, Nelson’s sentences are reversed.
Nelson was convicted of two counts of manslaughter while under the influence of alcohol, a chemical substance, or a controlled substance (DUI manslaughter); two counts of driving under the influence of alcohol, a chemical substance, or a controlled substance causing serious bodily injury (DUI causing serious bodily injury); and driving while license suspended or revoked. The offenses occurred in December 1995. He was sentenced to two terms of fifteen years’ imprisonment for the DUI manslaughter convictions and to two terms of five, years’ imprisonment for the DUI causing serious bodily injury convictions.1 The sentences were made to run consecutively for a total of forty years’ imprisonment. This original sentence was not a departure sentence.
In August 2000, Nelson filed a motion to correct illegal sentence based on Heggs. The State conceded that Nelson was entitled to be resentenced under the 1994 guidelines. At the resentencing hearing, the trial court determined that a departure sentence should be imposed and again sentenced Nelson to consecutive sentences for a total of forty years’ imprisonment. The trial court’s written reason for departure was that Nelson “is not amenable to rehabilitation or supervision, as evidenced by an escalating pattern of criminal conduct as described in s. 921.001(8).”
A Heggs resentencing entitled Nelson to a de novo sentencing hearing. See Trotter v. State, 825 So. 2d 362, 367-68 (Fla.2002). Upon resentencing, the trial court had discretion to impose an upward departure sentence that did not exceed the original sentence. See Bull v. State, 782 So. 2d 921, 922 (Fla. 2d DCA 2001). However, any departure must have been supported by written reasons existing at the time of the original sentencing. See id.
In this appeal, Nelson argues the reason given for his departure sentence was inappropriate because his prior record did not constitute an escalating pattern of criminal conduct. Such a pattern would be demonstrated by (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal ac tivity. See Ewell v. State, 852 So. 2d 436, 437 (Fla. 5th DCA 2003).
The State forthrightly concedes that the evidence presented to the trial court did not support the trial court’s reason for imposing the departure sentence. We agree. The trial court abused'its discretion, and Nelson’s sentences must be reversed.
We note that at the resentencing hearing there was confusion as to whether Nelson’s prior record involved a conviction for sale of cocaine or a conviction for “solicitation to purchase cocaine.” The State had a “printout” of Nelson’s prior record but did not have official documentation to confirm that the prior conviction in question was for sale of cocaine. On remand, at the resentencing hearing, the State shall have all documentation necessary to evidence Nelson’s prior record.
Nelson’s sentences are reversed. This case is remanded for the imposition of sentences which are within the appropriate guidelines range in accordance with the dictates of this opinion.
Affirmed in part, reversed in part, and remanded with directions.
KELLY and WALLACE, JJ., concur. . The information indicates that the driving while license suspended or revoked charge was a first-degree misdemeanor. § 322.34(l)(b), (2)(a), Fla. Stat. (1995). The record before this court does not indicate the term of the sentence originally imposed for that offense. Upon resentencing, the trial court imposed a sentence of time served.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Trotter v. State, 825 So. 2d 362 (Fla. 2002)
- Kedrick Bull, IV v. State, 782 So. 2d 921 (Fla. 2d DCA 2001)
- Ewell v. State, 852 So. 2d 436 (Fla. 5th DCA 2003)