Davis v. State, No. 86-1003

• Court: Court of Appeal of Florida (US)
• Writing for the Court: FRANK; SCHEB, A.C.J., and CAMPBELL
• Citation: 12 Fla. L. Weekly 2011,511 So.2d 430
• Parties: 12 Fla. L. Weekly 2011 James F. DAVIS, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 12 August 1987
• Docket Number: No. 86-1003

Page 430

511 So.2d 430 12 Fla. L. Weekly 2011 James F. DAVIS, Appellant,
v.
STATE of Florida, Appellee. No. 86-1003. District Court of Appeal of Florida,
Second District. Aug. 12, 1987.

Page 431

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellee.

FRANK, Judge.

James F. Davis was charged on April 22, 1983 with the crimes of armed robbery and aggravated battery. He was a juvenile at the time but was tried pursuant to section 39.04(2)(e)(4), Florida Statutes (1983). The trial terminated in a hung jury. Rather than being retried, Davis pleaded no contest to a reduced charge of robbery with a weapon and aggravated battery. A sentencing hearing was conducted on January 9, 1984. At the hearing, Davis stated he did not want to be sentenced pursuant to the guidelines. He was sentenced to ten years probation on each charge with the condition that he serve 364 days in the county jail and the subsequent two years under community control.

Davis violated community control. The order of probation was modified to reflect an additional two year term of community control as well as 160 hours of community service. On July 11, 1985, an affidavit was filed alleging that Davis had once again violated community control by committing a series of robberies. At the sentencing hearing on April 10, 1986, Davis elected to be sentenced in accordance with the guidelines for the 1983 offenses. He was sentenced to a total of 30 years in prison as a result of the robberies which occurred in 1985. He received 45 years of probation for the 1983, pre-guidelines, offenses to run consecutively with the sentence for the 1985 crimes. The recommended guidelines range was twelve to seventeen years. The trial court stated that any one reason would warrant departure; three reasons were enumerated:

1. Defendant is a habitual felony offender.

Page 432

2. Protection of the public from further criminal activity by the defendant.

3. Failure of previous attempts to rehabilitate said defendant.

Davis urges three issues on appeal and the state has raised a point which merits discussion. Davis first challenges the trial court's reasons for departure. Habitual offender status is not a valid basis for departure. Whitehead v. State, 498 So.2d 863 (Fla.1986). Protection of the public must also fail as a reason for departure. Copeland v. State, 503 So.2d 1301 (Fla.2d DCA 1987). The third departure ground--failure of previous attempts to rehabilitate--is also invalid under the circumstances found in the record. Tapia v. State, 509 So.2d 354 (Fla. 2d DCA 1987). Recidivism, alone, cannot support a departure sentence. Williams v. State, 504 So.2d 392, 393 (Fla.1987); Hendrix v. State, 475 So.2d 1218 (Fla.1985). In Williams our supreme court distinguished between an improper departure from the guidelines...