Irving v. State, 85-1365
| Decision Date | 05 March 1986 |
| Docket Number | No. 85-1365,85-1365 |
| Parties | 11 Fla. L. Weekly 570 Walter Leon IRVING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and D.P. Chanco, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
Defendant appeals his sentence in this revocation of probation proceeding. He contends that the trial court improperly departed from the presumptive sentence under the sentencing guidelines by imposing a sentence of five years incarceration. The sentence was two cells higher than the presumptive guidelines sentence after raising the sentence one cell for revocation of probation, although the scoresheet appears to indicate erroneously that the sentence was only one cell higher than the presumptive guidelines sentence.
The trial court gave the following reasons for departure: First, "defendant's significant prior record, which includes several convictions for theft and related crimes (see P.S.I.)"; second, "the factors surrounding the offense for which the defendant was placed on probation, to-wit: a residential burglary and theft therefrom of substantial property"; and third, "defendant's violation of probation by engaging in several sales of drugs while on probation."
The second of those reasons was improper as involving factors relating to the offense for which a conviction was obtained. See Hendrix v. State, 475 So.2d 1218 (Fla.1985).
The third of those reasons was proper only as a basis for a departure from the guidelines to the extent of one cell and was not a proper basis for the departure here. Fla.R.Crim.P. 3.701(d)(14). See also Wigfals v. State, 480 So.2d 259 (Fla. 2d DCA 1986). It is true that defendant was charged with violating probation by engaging in several drug sales. However, the trial court considered that conduct as constituting one violation of probation. Also, this case involved the only time defendant had appeared before the trial court on charges of violating his probation. Therefore, this case is distinguishable from cases approving a departure by more than one cell for multiple probation violations. See Booker v. State, 482 So.2d 414 (Fla. 2d DCA 1985); Gordon v. State, 483 So.2d 22 (Fla. 2d DCA 1985); Riggins v. State, 477 So.2d 663 (Fla. 5th DCA 1985).
As to the first of those reasons, defendant's prior record cannot be a proper basis for departure to the extent that prior convictions had already been scored on the scoresheet. See State v. Williams, 477 So.2d 570 (Fla.1985). It is true, as the state argues, that defendant's prior record...
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Reid v. State, 85-662
...element of one of the offenses for which defendant was convicted and was therefore an invalid reason for departure. See Irving v. State, 484 So.2d 78 (Fla. 2d DCA 1986). The threat and the injuries were contained in reasons 1 and 2 which are referred to above. The mere fact that the victim ......
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Brown v. State, 85-1801
...reason other than a single violation of community control. See Carlisle v. State, 485 So.2d 26 (Fla. 1st DCA 1986); Irving v. State, 484 So.2d 78 (Fla. 2d DCA 1986). We find that the court in the instant case did not provide clear and convincing reasons to support its four cell departure. A......
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Chandler v. State, 85-879
...court did not intend to depart solely on the basis of the prior juvenile convictions greater than three years old. Cf. Irving v. State, 484 So.2d 78 (Fla. 2d DCA 1986). Further the reason that appellant had not remained "crime-free" since 1978 is invalid because it is tied to prior convicti......
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Mack v. State, s. 85-1355
...by the rule. Stabler v. State, 486 So.2d 51 (Fla. 1st DCA 1986); Davis v. State, 486 So.2d 45 (Fla. 5th DCA 1986); Irving v. State, 484 So.2d 78 (Fla. 2d DCA 1986). Thus, the question before us is whether the trial judge expressed valid reasons for departure in this case other than the viol......