Ballard v. State, 85-455

CourtCourt of Appeal of Florida (US)
Citation11 Fla. L. Weekly 1179,501 So.2d 1285
Docket NumberNo. 85-455,85-455
Parties11 Fla. L. Weekly 1179 Marvin Raymond BALLARD, Appellant, v. STATE of Florida, Appellee.
Decision Date21 May 1986

Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Noel A. Pelella, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

This court previously relinquished jurisdiction and remanded the case to the trial court for thirty days with directions to put in writing the reasons the court departed from the sentencing guidelines. The state has supplemented the record with the trial court's order of December 3, 1985, delineating reasons for departure from the guidelines sentence. We hold that this order complies with the dictates of Boynton v. State, 473 So.2d 703 (Fla. 4th DCA 1985); affirmed State v. Boynton, 478 So.2d 351 (Fla.1985). In addition, the reasons set forth as grounds for departure from the sentencing guidelines, Ballard's escalating pattern of more serious offenses and his unamenability to rehabilitation, are clear and convincing reasons for departure. We find that the above reasons do not represent the type of "double" consideration of prior offenses prohibited by Hendrix v. State, 475 So.2d 1218 (Fla.1985), since it is not the prior offenses themselves that are considered but rather the pattern of escalating criminality discernible from them and the evidence that appellant is unamendable to rehabilitation through the probation process. See Dorado v. State, 482 So.2d 561 (Fla. 2d DCA 1986); Booker v. State, 482 So.2d 414 (Fla. 2d DCA 1985); Smith v. State, 480 So.2d 663 (Fla. 5th DCA 1985); Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984). But see Battles v. State, 482 So.2d 540 (Fla. 3d DCA 1986); Smith v. State, 479 So.2d 804 (Fla. 1st DCA 1985).

Accordingly, the sentence entered by the trial court is hereby affirmed.

DOWNEY and LETTS, JJ., concur.

HURLEY, DANIEL T.K., Associate Judge, dissents with opinion.

HURLEY, Judge, dissenting.

In my view, neither of the reasons stated by the trial court constitutes a clear and convincing reason to depart from the sentencing guidelines. On the contrary, I submit that both reasons violate the general rule which holds that a trial court may not depart from the guidelines based upon a factor which has already been weighed in arriving at a presumptive sentence. See Hendrix v. State, 475 So.2d 1218 (Fla.1985).

The trial court's first reason was the "continuing pattern of increasing serious offenses." The scoresheet, however, reveals that the trial court factored in both the number and the seriousness of prior convictions when it computed the presumptive sentence....

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8 cases
  • Salas v. State
    • United States
    • Florida District Court of Appeals
    • 17 Mayo 1989
    ...severity of the crimes. See Keys v. State, 500 So.2d 134 (Fla.1986); Gales v. State, 515 So.2d 431 (Fla. 4th DCA 1987); Ballard v. State, 501 So.2d 1285 (Fla. 4th DCA), review denied, 488 So.2d 67 (Fla.1986). We further hold that appellant's failure to rehabilitate himself constitutes a val......
  • Abt v. State, 4-86-1003
    • United States
    • Florida District Court of Appeals
    • 1 Abril 1987
    ...of crimes committed in an escalating pattern in nature and severity can be a valid basis to deviate. See, e.g., Ballard v. State, 501 So.2d 1285 (Fla. 4th DCA 1986); Pittman v. State, 492 So.2d 741 (Fla. 1st DCA 1986). We have considered Williams v. State, 492 So.2d 1308 (Fla.1986), and do ......
  • Abt v. State
    • United States
    • Florida District Court of Appeals
    • 13 Julio 1988
    ...conduct, was considered by this court and found to be a valid reason for departure. Abt, 504 So.2d at 550. See also Ballard v. State, 501 So.2d 1285 (Fla. 4th DCA 1986). The third reason for departure, that appellant committed a Home Invasion Burglary which is a new phenomenon not envisione......
  • Ree v. State, 4-86-0650
    • United States
    • Florida District Court of Appeals
    • 16 Septiembre 1987
    ...was invalid; and although the fourth reason (trend toward criminality of increasing severity), could have been valid, Ballard v. State, 501 So.2d 1285 (Fla. 4th DCA), rev. denied, 488 So.2d 67 (Fla.1986), it was not sufficiently supported by the evidence. Since the state has not shown beyon......
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