Frank v. State, 85-1269
| Decision Date | 20 June 1986 |
| Docket Number | No. 85-1269,85-1269 |
| Citation | 11 Fla. L. Weekly 1398,490 So.2d 190 |
| Parties | 11 Fla. L. Weekly 1398 Raymond FRANK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Claudia Jean Wheeler, Hudson, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellee.
Appellant was sentenced to five years in prison for battery on a law enforcement officer. Justifying the departure from a recommended guidelines range of twelve to thirty months' incarceration, the court gave the following written reasons:
1) reasons cited in the report of Probation and Parole; 2) last sentencing by this Court indicated that the defendants' engaging in a continuance course of bad conduct and violence against other people demonstrates no hope for rehabilitation.
Since the advent of sentencing guidelines, the ability of the court to rely upon the presentence report is not entirely clear. Presumably, the court can accept statements of fact set forth therein when they are not contradicted by the defendant. See Delaine v. State, 486 So.2d 39 (Fla. 2d DCA 1986). It would appear, however, that recommendations for departure can only be implemented when they are supported by factors not already taken into account in the guidelines computation or not otherwise precluded from consideration by Florida Rule of Criminal Procedure 3.701.
Here, the presentence report contained a recommendation for a sentence in excess of the guidelines for the following reasons:
A) Circumstances surrounding the subject's prior convictions for three similar batteries, the subject's conviction for AGGRAVATED BATTERY, and the subject's present conviction for the offense of BATTERY ON a law enforcement officer reflects a person of an extremely violent nature.
B) The protection of the community at large would require this period of incarceration, as evidenced by the subject's continuing involvement with law enforcement authorities, and the prospect of future involvement being quite high.
C) The subject's apparent need of extensive psychological counseling over an extended period of years.
The presentence report makes a persuasive case for departure. The problem is that the recommendation is based in large part upon appellant's history of five convictions for various types of battery. 1 The mere reliance on previous convictions already factored into the guidelines cannot justify a departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985). While an escalating pattern of criminal conduct has been held sufficient, Smith v. State, 480 So.2d 663 (Fla. 5th DCA 1985), an ongoing history of violence has been deemed invalid. Lee v. State, 486 So.2d 709 (Fla. 5th DCA 1986).
The presentence report refers to the need to incarcerate appellant for the protection of the community. Yet, in Middleton v. State, 489 So.2d 201 (Fla. 2d DCA 1986), our court recently held invalid a similar departure grounded upon the conclusion that because the present conviction constituted "the fourth conviction of this nature," the defendant needed to be in jail for the protection of society. 2
Finally, the presentence report recommended that appellant receive psychological counseling. Certainly, such a recommendation is an appropriate sentencing consideration. However, in most cases counseling can be satisfactorily accomplished without incarceration by imposing a requirement for counseling as a...
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Williams v. State, BH-245
...492 So.2d at 1308; Harris v. State, 489 So.2d 838 (Fla. 1st DCA 1986); Patty v. State, 486 So.2d 16 (Fla. 1st DCA 1986); Frank v. State, 490 So.2d 190 (Fla. 2d DCA 1986). The trial court's second reason for departure, that the defendant's criminal history indicates the guideline sentence is......
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Brier v. State, 85-1515
...1985); Johnson v. State, 477 So.2d 56 (Fla. 5th DCA 1985); Riggins v. State, 489 So.2d 180 (Fla. 1st DCA 1986). Compare Frank v. State, 490 So.2d 190 (Fla. 2d DCA 1986) (where a continuing course of various types of battery convictions is a violation of Hendrix v. State, 475 So.2d 1218 ...
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Mitchell v. State, BJ-113
...of the community" is an invalid reason for departure. E.g., Scott v. State, 484 So.2d 100 (Fla. 1st DCA 1986); Frank v. State, 490 So.2d 190 (Fla. 2d DCA 1986). The necessity of deterring others from similar acts has also been held invalid as a reason for departure. Smith v. State, 482 So.2......
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Smith v. State, 87-97
...the sentencing. Cousins v. State, 507 So.2d 651 (Fla. 2d DCA 1987); Falzone v. State, 496 So.2d 894 (Fla. 2d DCA 1986); Frank v. State, 490 So.2d 190 (Fla. 2d DCA 1986). In the first case, Frank, the court stated that given the commas setting off the words "resulting in conviction," the rul......