STATE OF FLORIDA, APPELLANT,
v.
VICTOR L. TICE, APPELLEE
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A downward departure sentence is not justified when not all three statutory mitigating factors are met, particularly when the defendant's criminal history contradicts the claim of an isolated incident.
The State appealed a downward departure sentence imposed on Victor L. Tice after his conviction for burglary and resisting an officer. The trial court…
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PETERSON, J.
The State of Florida appeals a downward departure sentence imposed upon Victor L. Tice after he was convicted of burglary of a dwelling,1 and resisting an officer without violence.2 The trial court refused to impose a guidelines sentence of 34.2 months; instead, the court imposed a departure sentence of 8 months, finding that the burglary was committed in an unsophisticated manner and was an isolated incident for which Tice had shown remorse.
Section 921.0016(4), Florida Statutes (2003), provides a non-exclusive list of mitigating circumstances that will justify a downward departure. Section 921.0016(4)©, authorizes a trial court to depart from a guidelines sentence where the preponderance of the evidence demonstrates that (1) the crime was committed in an unsophisticated manner; (2) the crime was an isolated incident; and (3) the defendant has shown remorse. When a departure is based on section 921.0016(4)©, all three elements must be met to justify the departure. See, e.g., State v. Thompson, 844 So. 2d 814 (Fla. 5th DCA 2003). While Tice has shown remorse, his criminal history does not support the conclusion that his latest felonies were isolated incidents. His scoresheet indicates that he was previously convicted of (1) resisting an officer without violence; (2) two violations of probation; (3) aggravated battery with a deadly weapon; and (4) fleeing or attempting to elude a police officer. We vacate the downward departure sentence and remand for resentencing within the guidelines. See, e.g., State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004) (recognizing that for purposes of section 921.0016(4)©, a crime may not be considered an isolated incident where the defendant has previously been convicted of other felonies and misdemeanors).
i SENTENCE VACATED; REMANDED.
GRIFFIN and MONACO, JJ., concur. . § 810.02(3), Fla. Stat. (2003).
. § 843.02.
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State v. Waterman, 12 So. 3d 1265 (Fla. 4th DCA 2009)…ddition, his history shows an emerging pattern of alcohol-related crimes, in that his current escape charge arose out of his second arrest for DUI within a year. Waterman’s record is more similar in scope to the defendant’s record in State v. Tice, 898 So. 2d 268 (Fla. 5th DCA 2005). In Tice, the defendant’s scoresheet indicated that he was previously convicted of resisting an officer without violence, two violations of probation, aggravated battery with a deadly weapon, and fleeing or attempting to elude a…
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State v. Jamar Thompkins, 113 So. 3d 95 (Fla. 5th DCA 2013)…istory, including a prior conviction for burglary of a dwelling, that clearly indicates that his crimes are not isolated incidents within the meaning of section 921.0026(2)(j). See State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010); State v. Tice, 898 So. 2d 268 (Fla. 5th DCA 2005); Deleon. Even if we were to overlook Thompkins’ prior burglary conviction, the remainder of his criminal history would vitiate any suggestion that his current crimes were isolated incidents under the statute. See Ayers, 901 So. 2…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thompson, 844 So. 2d 814 (Fla. 5th DCA 2003)
- State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004)