Fuller v. State, 85-1090
| Decision Date | 02 May 1986 |
| Docket Number | No. 85-1090,85-1090 |
| Parties | 11 Fla. L. Weekly 1040 Phillip J. FULLER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
Appellant, Phillip J. Fuller, was charged with armed robbery. Pursuant to a jury trial he was convicted as charged and sentenced to life imprisonment. Appellant raised two points on appeal. We find no merit to his first point on appeal but agree that the court improperly departed from the guidelines and, accordingly, remand for resentencing.
While the sentencing guidelines prescribed a sentence of nine to twelve years, the trial judge elected to depart from the guidelines and sentenced appellant to life imprisonment. The trial judge listed twenty reasons as a basis for this departure. Appellant contends that the reasons used for departure are invalid. We agree that the majority of the reasons listed for departure are not clear and convincing reasons. However, those reasons which refer to appellant's course of conduct showing that he is a danger to society, continues a pattern of violent behavior, and has a lack of regard for the law and judicial system, together with his resistance to rehabilitation, are valid reasons upon which to justify a departure. Booker v. State, 482 So.2d 414 (Fla. 2d DCA 1985); Casteel v. State, 481 So.2d 72 (Fla. 1st DCA 1986).
According to our supreme court unless an appellate court can determine beyond a reasonable doubt that the trial court would have departed regardless of the invalid reasons, we must remand for resentencing. Albritton v. State, 476 So.2d 158 (Fla.1985); State v. Young, 476 So.2d 161 (Fla.1985).
In Albritton the supreme court holds that the sentence should be reversed unless "the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence." Id. at 160 (emphasis added). To apply this test literally would require that we remand for resentencing every departure case where the state fails to carry this prodigious burden, even though it is apparent to the appellate court from an examination of the record that the trial judge will again depart upon remand based upon his valid reasons. While we recognize the intent of the...
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Viera v. State, 86-2532
...Fry v. State, 497 So.2d 964 (Fla.1st DCA 1986) (defendant's contempt for judicial system valid reason for departure); Fuller v. State, 488 So.2d 594 (Fla.2d DCA 1986) (lack of regard for law valid reason for departure). We conclude that the trial court would have imposed a departure sentenc......
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...judicial system--a valid reason upon which to justify a departure. Santana v. State, 507 So.2d 680 (Fla. 2d DCA 1987); Fuller v. State, 488 So.2d 594 (Fla. 2d DCA 1986). Where there exist both valid and invalid reasons, the sentence should be reversed and remanded for resentencing unless th......
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Brown v. State
...ground for departure. Similar pronouncements have been made in Fry v. State, 497 So.2d 964 (Fla. 1st DCA 1986), and Fuller v. State, 488 So.2d 594 (Fla. 2d DCA 1986). Yet, other opinions contain the flat statement that lack of respect for the judicial system or the law is an invalid reason ......
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Harris v. State, 87-11
...is coupled with other facially valid reasons for departure. See Washington v. State, 501 So.2d 133 (Fla. 2d DCA 1987); Fuller v. State, 488 So.2d 594 (Fla. 2d DCA 1986). Because it is essential that the trial judge explicate his reasons for departure so they can be properly reviewed, we fin......