Jones v. State, 90-1365
| Decision Date | 23 July 1991 |
| Docket Number | No. 90-1365,90-1365 |
| Citation | 583 So.2d 387 |
| Parties | Milton JONES, Appellant, v. STATE of Florida, Appellee. 583 So.2d 387, 16 Fla. L. Week. D1889 |
| Court | Florida District Court of Appeals |
Appellant moves for rehearing of this case in light of the supreme court's recent decision in Smith v. State, 579 So.2d 75 (Fla.1991). Appellant's motion is granted, the per curiam affirmance filed on May 20, 1990, is withdrawn, and the following opinion and decision is substituted therefor.
Appellant, Milton Jones, was originally convicted by jury of possession of cocaine with intent to sell, was found to be a habitual offender, and was sentenced outside the recommended guideline range to ten years incarceration. His conviction was affirmed on appeal, but his sentence was reversed, this court specifically holding that the trial court could depart on remand from the recommended guideline sentence, based on clear and convincing reasons. Jones v. State, 558 So.2d 131 (Fla. 1st DCA 1990). On remand, the trial court again imposed a sentence of ten years incarceration, based on three reasons for departure: (1) appellant's unwillingness or inability to be rehabilitated; (2) appellant's disregard for the law; and (3) the timing of the instant offenses in relation to sentencing on previous drug offenses. We find all three reasons to be invalid.
The first reason--unamenability to rehabilitation--has been found to be an invalid reason for departure. Sellers v. State, 559 So.2d 378 (Fla. 2d DCA 1990); Ellis v. State, 559 So.2d 292 (Fla. 5th DCA 1990); and Maddox v. State, 553 So.2d 1380 (Fla. 5th DCA 1989). The second reason--disrespect or disregard for the law, standing alone--has also been found to be an invalid basis for departure, as an inherent component of every criminal offense. Brown v. State, 569 So.2d 1223 (Fla.1990).
The third reason--timing of the instant offense--is also invalid in light of the supreme court's holding in Smith v. State, supra. In the instant case, the record indicates that appellant was sentenced in May 1987 to five years probation on two charges of possession of cocaine, one charge of possession of marijuana with intent to distribute, and one charge of possession of drug paraphernalia. In June 1988, he was sentenced to another five years probation for one charge of possession of a controlled substance. In August of 1988, appellant was...
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Ribas v. State
...313 (Fla. 2d DCA 1987), review denied, 523 So.2d 576 (Fla.1988); Lindsey v. State, 453 So.2d 485 (Fla. 2d DCA 1984); Jones v. State, 583 So.2d 387 (Fla. 1st DCA 1991). Accordingly, we affirm the appellant's convictions but reverse his upward departure sentence and remand for resentencing wi......
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Smith v. State, 91-01373
...273 (Fla.1992). Thus, lack of amenability to rehabilitation standing alone is no longer a valid reason for departure. Jones v. State, 583 So.2d 387 (Fla. 1st DCA 1991); Sellers v. State, 559 So.2d 378 (Fla. 2d DCA A continuing or persistent pattern of criminal activity when coupled with an ......
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Moore v. State, s. 90-2048
...we find this basis for departure to be invalid as well. See Simmons v. State, 570 So.2d 1383 (Fla. 5th DCA 1990), and Jones v. State, 583 So.2d 387 (Fla. 1st DCA 1991). The timing of the possession offenses in relation to the imposition of probation in Sarasota County is also an invalid bas......
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Groves v. State, 98-1702.
...but all of the other reasons are either invalid or insufficient, standing alone, to support the departure sentence. See Jones v. State, 583 So.2d 387 (Fla. 1st DCA 1991). Because there is no ground for the imposition of a departure sentence, we reverse with instructions to impose a sentence......