Jones v. State, s. BJ-402
| Court | Court of Appeal of Florida (US) |
| Citation | 501 So.2d 665,12 Fla. L. Weekly 247 |
| Docket Number | Nos. BJ-402,BK-321,s. BJ-402 |
| Parties | 12 Fla. L. Weekly 247, 12 Fla. L. Weekly 440 Cledius Orlando JONES, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 13 January 1987 |
Page 665
v.
STATE of Florida, Appellee.
First District.
On Motion for Rehearing Feb. 4, 1987.
Page 666
Michael E. Allen, Public Defender, David A. Davis, Asst. Public Defender and Pamela D. Presnell, Legal Asst., Tallahassee, for appellant.
Jim Smith, Atty. Gen., and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
ZEHMER, Judge.
Cledius Jones pled guilty to burglary (count one), grand theft (count two), and trafficking in stolen property (count three, merged with counts one and two before sentencing). The trial court departed from the recommended guidelines sentence of four and one-half to five and one-half years, and sentenced Jones to ten years in state prison on count one and five years on count two, to run concurrently. The judge gave two reasons for departure:
1) the defendant's extensive juvenile record; and
2) [defendant is] a continuing threat to the community due to the fact that the temporal proximity of the commission of the crimes evinces a total disregard of the property rights of others.
Appellant contends that both of these reasons are invalid. We agree and reverse.
Rule 3.701(d)(5)(c), Florida Rules of Criminal Procedure, requires the scoresheet to reflect, as part of the defendant's prior record, "all prior juvenile dispositions which are the equivalent of convictions as defined in section (d)(2), occurring within three (3) years of the commission of the primary offense and which would have been criminal if committed by an adult." Conviction is defined in subsection (d)(2) as "a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended." The trial judge may not consider juvenile offenses for which convictions were not obtained, Weems v. State, 469 So.2d 128, 130 (Fla.1985), or which have already been factored into the guidelines sentence, Hendrix v. State, 475 So.2d 1218, 1220 (Fla.1985). The judge may properly consider any juvenile convictions more than three years old as a reason to depart. Weems v. State, 469 So.2d at 130.
In this case, the judge apparently relied on the presentence investigation for the record of appellant's juvenile offenses.
Page 667
But the PSI does not show any adjudications of guilt, and the record is unclear as to the...To continue reading
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