Booker v. State, s. 85-408

• Decision Date: 13 December 1985
• Docket Number: 85-409,85-410,Nos. 85-408,s. 85-408
• Citation: 10 Fla. L. Weekly 2751,482 So.2d 414
• Parties: 10 Fla. L. Weekly 2751 Dilar S. BOOKER, a/k/a Kerry Lemuel Doby, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 414

482 So.2d 414

10 Fla. L. Weekly 2751

Dilar S. BOOKER, a/k/a Kerry Lemuel Doby, Appellant, v. STATE of Florida, Appellee.

Nos. 85-408, 85-410, 85-409.

District Court of Appeal of Florida Second District.

Dec. 13, 1985.

Rehearing Denied Jan. 28, 1986.

James Marion Moorman, Public Defender, and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Acting Chief Judge.

This is a sentencing guidelines case. Originally, the trial court departed from the guidelines in sentencing the defendant. We vacated that sentence because of a procedural irregularity and remanded for resentencing. The defendant challenges his resentencing to five consecutive five year terms of imprisonment. We affirm.

The record reveals that the defendant Dilar S. Booker was placed on probation on May 1, 1981, after pleading guilty to burglary of a structure. On July 23, 1981, the defendant pled guilty to another charge of burglary of a structure, as well as a charge of second degree grand theft. Then, on May 19, 1983, the defendant pled guilty to additional charges of burglary of a structure and second degree grand theft. The court withheld adjudication of guilt on these last four offenses and ordered that the defendant serve four concurrent probationary terms of five years concurrent with the previous period of probation.

On January 23, 1984, affidavits were filed charging the defendant with violating his probation by committing strong-arm robbery. After an evidentiary hearing, the trial court revoked the defendant's probation and adjudicated him guilty of the three counts of burglary of a structure and two counts of second degree grand theft. The trial judge then imposed consecutive prison sentences of five years on each of these five offenses.

On appeal, this court held that the trial court did not follow the procedures set forth in the sentencing guidelines because the court departed from the presumptive sentence without benefit of a guidelines scoresheet. Doby v. State, 461 So.2d 1360 (Fla.2d DCA 1984). Although the trial judge announced his reasons for departure, we determined that he was without sufficient information to decide whether to depart from the guidelines without first knowing the presumptive sentences. Doby.

At resentencing, the trial court had before it a guidelines scoresheet which recommended a non-state prison sanction enhanced to 12 to 30 months incarceration because of the defendant's probation violation. As in the original sentencing, the court departed from the guidelines and again sentenced the defendant to serve five consecutive five-year terms of imprisonment. Defendant again appeals, raising five points. We address each issue.

First, the defendant correctly points out that since the prior offenses for which he was placed on probation occurred before October 1, 1983, he had the option to select to be sentenced under the new sentencing guidelines upon revocation of his probation. § 921.001(4)(a), Fla.Stat. (1983); Boyett v. State, 452 So.2d 958 (Fla.2d DCA 1984), aff'd, 467 So.2d 997 (Fla.1985). Although it does not appear that the defendant selected the guidelines at the resentencing hearing, he clearly elected to be sentenced under the guidelines at the original hearing. Thus, we reject the defendant's argument that because he did not again select to be sentenced under the guidelines, his sentence must be altered to reflect that it is a nonguidelines sentence. Our remand for resentencing did not vitiate the selection, but only required a procedurally proper sentencing pursuant to the defendant's prior selection.

We have previously rejected defendant's second contention that section 921.001(4)(a), Florida Statutes (1983), violates article X, section 9, of the Florida Constitution. Hayward v. State, 467 So.2d 462 (Fla.2d DCA 1985).

We also find no merit to defendant's third argument that the court erred in refusing defense counsel's request to consult with the defendant regarding the accuracy of the scoresheet. Defendant has never pointed to any specific errors in the scoresheet, nor does he argue on this appeal that the scoresheet is, in fact, incorrect. Therefore, error, if any, is harmless. Cf. Lanier v. State, 478 So.2d 1184 (Fla. 2d DCA 1985).

Further, we reject the defendant's fourth contention that the trial court erred by departing from the guidelines recommended sentence without clear and convincing reasons. The trial judge entered a written "Order of Aggravating Circumstances" in which he outlined in great detail the defendant's violation of probation and past criminal history as grounds for departure. ¹

The defendant argues that on revocation of probation, it is improper for the trial court to depart from the guidelines range beyond the one cell allowed by the 1984 amendment to Florida Rule of Criminal Procedure 3.701. ² See Ehrenshaft v. State, 478 So.2d 842 (Fla. 1st DCA 1985), and Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985), holding that if violation of probation is the sole reason for departing from the guidelines sentence, the sentence may be increased no more than one cell without other clear and convincing reasons. Under the circumstances of this case we reject the defendant's argument.

Here, the defendant violated his probation on two previous occasions. We interpret the trial court's departure, on the violation of probation, to be based not only on defendant's January 1984 violation, but also on the violations occurring in July 1981 and May 1983. Thus, we find that the trial court did not err in departing more than one cell above the guidelines presumptive sentence based on the defendant's violation of probation. See Riggins v. State, 477 So.2d 663 (Fla. 5th DCA 1985). Cf. Thrasher v. State, 477 So.2d 1083 (Fla. 1st DCA 1985). We recognize the supreme court's recent disapproval of "double dipping" in guidelines scoring. Hendrix v. State, 475 So.2d 1218 (Fla.1985). Nevertheless, our view is reinforced by the fact that nowhere on a sentencing guidelines scoresheet is there a provision factoring in probation violations which occurred between the substantive offense and the current revocation.

The trial judge's second reason for departure, concerning the defendant's past criminal history, is also detailed in the court's order of aggravating circumstances. In Hendrix, the Florida Supreme Court held that a defendant's prior convictions may not be considered as a valid reason for departure from the guidelines. However, we do not construe the court's opinion in Hendrix as implying that the trial judge cannot depart from the presumptive sentence where, as here, the defendant has failed to respond to past rehabilitative efforts, has continued to violate his probation, and has demonstrated an "evidently escalating criminal involvement." See also Johnson v. State, 477 So.2d 56 (Fla. 5th DCA 1985). In sum, we find that the trial court's departure was based on clear and convincing reasons in accordance with Florida Rule of Criminal Procedure 3.701(d)(11).

Defendant's final point on appeal is the most troublesome. In Albritton v. State, 476 So.2d 158 (Fla.1985), the Florida Supreme Court stated:

An appellate court reviewing a departure sentence should look to the guidelines sentence, the extent of the departure, the reasons given for the departure, and the record to determine if the departure is reasonable.

The defendant argues that the trial court abused its discretion in this case by imposing a twenty-five-year sentence, which is ten times greater than the two and one-half years maximum recommended under the guidelines. Admittedly, the twenty-five-year sentence seems to be somewhat harsh.

We find the teachings of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), instructive on review of judicial discretion. There, our supreme court cited with favor the following test from Delno v. Market Street Railway Co., 124 F.2d 965, 967 (9th Cir.1942), for review of a trial judge's discretionary power:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Canakaris, 382 So.2d at 1203.

In view of the written reasons for departure and the record in this case, we cannot say that it was unreasonable for the trial judge to sentence the defendant as he did in this case. But see McBride v. State, 477 So.2d 1091 (Fla. 4th DCA 1985), holding that the trial judge abused his discretion in exceeding the guidelines sentence by five times.

The supreme court's ruling in Albritton has assigned the district courts of appeal the arduous task of determining whether a trial court has abused its discretion in departing from the recommended range of sentencing. Since no criteria have been identified to assist us in performing that function, we certify the following question, as we did in Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985), as one of great public importance:

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE PERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, WHAT CRITERIA SHOULD AN APPELLATE

COURT ADOPT IN DETERMINING IF THE SENTENCING COURT ABUSED ITS DISCRETION IN ITS EXTENT OF DEVIATION?

Affirmed.

LEHAN and HALL, JJ., concur.

/s/ Harry Lee Coe, III

CIRCUIT COURT JUDGE

1 The Order provided:

THIS CAUSE coming on to be heard on January 25, 1985, on the sentencing of Kerry Lemuel Doby a/k/a Dilar Seabon Booker with the defendant having been found guilty of one count of Burglary of a Structure on May 1, 1981, and...