Ballard v. State, 85-455

• Decision Date: 21 May 1986
• Docket Number: No. 85-455,85-455
• Citation: Ballard v. State, 501 So.2d 1285, 11 Fla. L. Weekly 1179 (Fla. App. 1986)
• Parties: 11 Fla. L. Weekly 1179 Marvin Raymond BALLARD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1285

501 So.2d 1285

11 Fla. L. Weekly 1179

Marvin Raymond BALLARD, Appellant, v.STATE of Florida, Appellee.

No. 85-455.

District Court of Appeal of Florida Fourth District.

May 21, 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 DCA1985);affirmedState 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.SeeDorado v. State, 482 So.2d 561(Fla. 2d DCA1986);Booker v. State, 482 So.2d 414(Fla. 2d DCA1985);Smith v. State, 480 So.2d 663(Fla. 5th DCA1985);Kiser v. State, 455 So.2d 1071(Fla. 1st DCA1984);Higgs v. State, 455 So.2d 451(Fla. 5th DCA1984).But seeBattles v. State, 482 So.2d 540(Fla. 3d DCA1986);Smith v. State, 479 So.2d 804(Fla. 1st DCA1985).

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.SeeHendrix 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.Thus, under the Hendrix rule, the trial court...