Fain v. State
| Citation | 488 So.2d 169,11 Fla. L. Weekly 1151 |
| Decision Date | 16 May 1986 |
| Docket Number | Nos. BF-382,BF-383,s. BF-382 |
| Parties | 11 Fla. L. Weekly 1151 Sandra FAIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender; and David A. Davis, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., for appellee.
Appellant appeals the sentencing orders of the trial court which were handed down pursuant to one guidelines' scoresheet, from which the trial judge departed. We reverse.
In two separate cases, appellant pled guilty to one count each of grand theft. The offenses were scored under the same scoresheet, showing that appellant had three prior category six offenses, which were scored, as well as another prior conviction. Appellant also was assessed six points for being under legal constraint at the time of the present offenses. Her scoresheet contained fifty-three points, which resulted in a guidelines' recommendation of community control or twelve to thirty months' incarceration.
On the following grounds, the trial judge departed from the guidelines and sentenced appellant to two concurrent five-year terms:
1. Defendant has exhibited continued pattern of theft.
2. Defendant was on probation and violated probation by another theft charge.
3. Defendant has previously been sentenced to the state prison and has not been rehabilitated.
4. The court finds that defendant is an habitual thief.
Grounds one and four appear to be based exclusively upon appellant's prior record, which has already been scored and therefore is an improper ground for departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985). Reason number two also has already been factored into the scoresheet and thus is an inappropriate ground for departure. Moore v. State, 483 So.2d 37 (Fla. 1st DCA 1986). In State v. Mischler, 488 So.2d 523 (Fla. 1986), the court listed three categories of reasons that, if given by the trial court to justify departure, require reversal by an appellate court. One of those reasons is that "factors already taken into account in calculating the guidelines score can never support departure." Consequently, in light of the above-cited cases, as well as Mischler, we must reverse and remand for resentencing on the basis of the impropriety of reasons one, two and four.
Reason number three is likewise insufficient in that it fails to bear any relationship to departure from the guidelines since the guidelines' recommendation allowed for imposition of a twelve to thirty-month prison term. Compare Sabb v. State, 479 So.2d 845 (Fla. 1st DCA 1985) and Brooks v. State, 456 So.2d 1305 (Fla. 1st DCA 1984), in which this Court refused to support departure from a recommended sentence of incarceration to an increased term of incarceration merely on the ground that incarceration appeared to...
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Robinson v. State, 87-0562
...(Fla. 4th DCA 1987), stated that the failure to rehabilitate the defendant was an invalid ground for departure. See also Fain v. State, 488 So.2d 169 (Fla. 1st DCA 1986); Gibson v. State, 510 So.2d 1191 (Fla. 1st DCA 1987); Bradley v. State, 509 So.2d 1137 (Fla. 2d DCA 1987). However, the a......
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Bailey v. State, BE-403
...488 So.2d 163 (Fla. 1st DCA 1986);The defendant had previously been sentenced to prison and had not been rehabilitated, Fain v. State, 488 So.2d 169 (Fla. 1st DCA 1986);Prior history indicates rehabilitation not possible, protection of society requires restraint, Harris v. State, 489 So.2d ......
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Nichols v. State, BL-426
...a continuing pattern of drug-related offenses. A continuing pattern of offenses is not a valid reason for departure. See Fain v. State, 488 So.2d 169 (Fla. 1st DCA 1986) (a continuing pattern of theft is an invalid reason for departure); Casteel v. State, 481 So.2d 72, 73 (Fla. 1st DCA 1986......
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Staten v. State, 85-2194
...to incarceration have failed is not a valid reason for departure where the guidelines recommend incarceration. See Fain v. State, 488 So.2d 169 (Fla. 1st DCA 1986). We cannot conclude beyond a reasonable doubt that the court would have departed had it known that four of the five reasons rel......