Bogan v. State, AW-13
| Decision Date | 06 August 1984 |
| Docket Number | No. AW-13,AW-13 |
| Parties | Roger Lee BOGAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
Roger Lee Bogan appeals from the imposition of sentence after his probation was revoked. Bogan argues on appeal that the sentencing court did not provide a "clear and convincing reason" for its departure from the sentencing guidelines under which he had elected to be sentenced. We affirm.
Bogan pled guilty to aggravated assault and opposing an on-duty officer with violence, both third-degree felonies, on 29 March 1975. He did not appear for sentencing and was not apprehended until 25 May 1981. Bogan thereafter received two concurrent five-year terms of probation, which were revoked on 13 October 1983 based on the violation by him of several conditions of the probation. Bogan was sentenced on the same date, based primarily on a sentencing guidelines scoresheet. See Rule 3.701(d), Fla.R.Crim.P. The primary offense at conviction was stated to be "aggravated battery," a second-degree felony at the time of sentencing and Bogan was therefore assigned 105 points in this category. His total score was 134 points, which correlates to the recommended sentence range of "community control or 12-30 months incarceration." The sentencing court determined to depart from this recommendation, stating the following written reasons therefor:
Probation or any nonstate sanction is recommended by the Probation Officer, in its Pre-Sentence Investigation report following the sentencing guidelines. However, probation officials candidly recommend a departure from the sentencing guidelines for Mr. Bogan due to the fact he has indicated by his behavior and attitude that he will not cooperate with probation officials or respond to probation supervision. With this the court agrees. Even a cursory glance of the defendant's past records indicates he has grossly abused the privilege of probation granted to him by the court. In placing a defendant on probation, the court is saying that justice and welfare of society does not require the defendant to suffer the full punishment of the law; but when such privilege is given, and the beneficiary of same grossly abuses it, then harsher sanctions, at least, are absolutely necessary.
The court thereupon sentenced Bogan to four years imprisonment on the aggravated battery charge, with a consecutive four-year term of probation on the charge of opposing the officer with violence.
Bogan argues that the court's reasons for departure from the guidelines were not "clear and convincing" as required by Rule 3.701(d)(11), Fla.R.Crim.P. 1 First of all, his probation officer had not recommended "probation or any nonstate sanction" as stated by the court, but rather a brief period of incarceration followed by a period of probation. Further, the reason that he "has indicated by his behavior and attitude that he will not cooperate with probation officials or respond to probation supervision" does not reach the level of "clear and convincing." Bogan asks the court to compare the Minnesota sentencing guidelines which, similarly to Florida's, require "substantial and compelling" reasons to justify departure. The Supreme Court of that state has held that nonamenability to probation does not justify departure from the guidelines. See State v. Barnes, 313 N.W.2d 1 (Minn.1981).
Bogan also points out that he was incorrectly...
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