Hendrix v. State

Decision Date29 August 1985
Docket NumberNo. 65928,65928
Parties10 Fla. L. Weekly 425 Terry B. HENDRIX, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for petitioner.

Jim Smith, Atty. Gen., and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for respondent.

PER CURIAM.

We have for review Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984), which expressly and directly conflicts with decisions of other district courts of appeal and this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Hendrix, who had pled guilty to grand theft, appealed his four-year prison sentence imposed by the trial court outside the sentencing guidelines. He had a total of twenty-five points under the guidelines, the maximum sentence thus being "any nonstate prison sanctions." Of these twenty-five points, twelve resulted from Hendrix's prior convictions for one third-degree felony and two misdemeanors. Citing this prior record as justification, the trial court departed from the presumptive guidelines sentence, and imposed a sentence of four years imprisonment.

On appeal, Hendrix contended that since his prior record was taken into account in calculating his guidelines score, it was error to reconsider this same factor to justify departure from the guidelines. The Fifth District Court of Appeal affirmed the trial court's departure. 455 So.2d at 450. It held that since the doubling was not specifically precluded by the sentencing guidelines rule, it was acceptable. Id.

In In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983), this Court adopted the Sentencing Guidelines, Rule 3.701, Florida Rules of Criminal Procedure. These guidelines were in response to the widespread problem of disparity in sentencing practices around the state. As we stated in our opinion, with the attached rule and committee notes, the guidelines were adopted to establish a "uniform set of standards to guide the sentencing judge" and "to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense- and offender-related criteria and in defining their relative importance in the sentencing decision." Id. at 849; Fla.R.Crim.Pro. 3.701(b).

Departures from the guidelines are permitted, but judges must explain departures in writing and may depart only for reasons that are "clear and convincing." Fla.R.Crim.Pro. 3.701(b)(6), (d)(11). Moreover, the guidelines direct that departures "should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence." Fla.R.Crim.Pro. 3.701(d)(11). Therefore, while the rule does not eliminate judicial discretion in sentencing, as respondent argues, it does seek to discourage departures from the guidelines.

In the instant case the trial judge departed from the guidelines based on the defendant's prior criminal convictions. This was not a proper reason for departing. The guidelines have factored in prior criminal records in order to arrive at a presumptive sentence. Fla.R.Crim.Pro. 3.701(b)(4), (d)2-5. Hendrix received 12 points for his prior convictions, out of a total of 25 for the offense for which he was convicted. To allow the trial judge to depart from the guidelines based upon a factor which has already been weighed in arriving at a presumptive sentence would in effect be counting the convictions twice which is contrary to the spirit and intent of the guidelines. Accord, State v. Brusven, 327 N.W.2d 591 (Minn.1982); State v. Erickson, 313 N.W.2d 16 (Minn.1981); State v. Barnes, 313 N.W.2d 1 (Minn.1981). We agree with the First District Court of Appeal in that "[w]e find a lack of logic in considering a factor to be an aggravation allowing departure from the guidelines when the same factor is included in the guidelines for purposes of furthering the goal of uniformity." Burch v. State, 462 So.2d 548, 549 (Fla. 1st DCA 1985).

Therefore, we hold that the...

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    ...decision and are not intended to usurp judicial discretion...."14 Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984).15 475 So.2d 1218, 1220 (Fla.1985).16 Wesson v. State, 535 So.2d 717 (Fla. 5th DCA 1989), quashed, 559 So.2d 1100 (Fla.1990); Hamilton v. State, 533 So.2d 926 (Fla. 5th DCA ......
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