Harvey v. State, 83-2344

Decision Date13 June 1984
Docket NumberNo. 83-2344,83-2344
PartiesKevin HARVEY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard F. Rendina, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Harvey appeals from an order revoking his probation and sentencing him to three years in state prison. He contends that he was entitled to be sentenced under Florida's new sentencing guidelines, Florida Rule of Criminal Procedure 3.701. We agree and reverse.

Harvey originally pled guilty to a charge of grand theft and received three years probation. In June of 1983, he was charged with violating the terms of his probation. He admitted to the violation and was sentenced to three years imprisonment on October 18, 1983.

At the probation revocation hearing Harvey affirmatively requested to be sentenced under the guidelines set forth in Florida Rule of Criminal Procedure 3.701. The trial judge verbally denied the request, citing the following grounds as reasons for his departure from the guidelines:

(1) a 1972 juvenile arrest for breaking and entering;

(2) a 1972 juvenile arrest for petit larceny;

(3) a 1975 juvenile arrest for buying and concealing stolen property;

(4) a 1975 juvenile arrest for possession of stolen property and breaking and entering with intent to commit grand larceny;

(5) a 1980 conviction for having an unsecured tag and vehicle inspection;

(6) a 1981 fine for disobeying a stop sign;

(7) a 1982 fine for racing on the highway.

In view of that criminal history, the trial court concluded, "He violated the Court's confidence and he's a thief and I make that finding, and those are the grounds that I go outside of the guidelines."

As a preliminary matter, we observe that the trial court failed to provide a written statement providing the reasons for the departure as required by Florida Rule of Criminal Procedure 3.701(d)(11). However, we do not reverse on that basis because the trial court's reasons were in fact transcribed as part of the record. We believe that oral explanation in the record sufficiently provides the opportunity for meaningful appellate review for purposes of Florida Rule of Criminal Procedure 3.701. Cf. Cave v. State, 445 So.2d 341 (Fla.1984); Thompson v. State, 328 So.2d 1 (Fla.1976).

Turning to the merits, we hold that the trial court erred by departing from the guidelines because the proffered justification does not amount to a "clear and convincing reason" which warrants aggravating the sentence for purposes of Rule 3.701(d)(11). The state concedes that none of the items listed in appellant's history...

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    ...2d DCA 1984); Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984). Contra Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984).9 Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984).10 Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984); Smith v. Sta......
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    • Florida District Court of Appeals
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    ...a valid reason for departing from sentencing guidelines); Sellers v. State, 499 So.2d 43 (Fla. 1st DCA 1986) (same); Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984) (same). Since Lumpkin was not charged with robbery against the children, the children must be considered as witnesses rathe......
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