Keys v. State

Citation12 Fla. L. Weekly 56,500 So.2d 134
Decision Date24 December 1986
Docket NumberNo. 67504,67504
Parties12 Fla. L. Weekly 56 Johnny Lee KEYS, Petitioner, v. STATE of Florida, Respondent.
CourtUnited States State Supreme Court of Florida

James B. Gibson, Public Defender, Seventh Judicial Circuit, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for petitioner.

Jim Smith, Atty. Gen., and Sean Daly, Asst. Atty. Gen., Daytona Beach, for respondent.

EHRLICH, Justice.

We have for review Keys v. State, 473 So.2d 800 (Fla. 5th DCA 1985) which directly and expressly conflicts with this Court's decision in Albritton v. State, 476 So.2d 158 (Fla.1985). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash the decision below.

The petitioner, Keys, pled guilty to sexual battery, robbery and aggravated battery. Although the recommended sentence under the sentencing guidelines would have been from twelve to seventeen years incarceration, the trial court departed from the guidelines and imposed a sentence of two hundred and fifteen years. The trial court listed five written reasons for departure: 1) Prior criminal history; 2) escalating course of criminal conduct; 3) victim injury; 4) danger to the community; 5) the defendant's inability to live in an unstructured environment.

The Fifth District Court of Appeal affirmed the judgment and sentence of the trial court, holding that Keys' violation of probation, his escalating course of violent criminal conduct indicating that he is unsuitable for probation or community control, and the facts and circumstances relating to the present offenses provided clear and convincing reasons supporting departure from the guidelines. The court further held that any reference by the trial judge to impermissible reasons for departure did not vitiate the valid reasons and therefore did not require remanding for resentencing.

This standard of review is contrary to our holding in Albritton v. State, 476 So.2d 158 (Fla.1985), wherein we held that when a departure is grounded on valid and invalid reasons the sentence should be reversed and remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence. 1

Only one of the reasons given by the trial court and approved by the district court is "clear and convincing." In State v. Mischler, 488 So.2d 523 (Fla.1986), we held that an appellate court's function in a sentencing guidelines case is merely to review the reasons given to support departure and determine whether the trial court abused its discretion in finding those reasons "clear and convincing." Clear and convincing reasons require that the facts supporting the reasons be credible and proven beyond a reasonable doubt. Even if the reason is one which in the abstract may be appropriate for departure, the facts of the particular case must establish the reason beyond a reasonable doubt.

The first reason listed by the trial court, prior criminal history, is an invalid reason because it has already been factored into the guidelines. Hendrix v. State, 475 So.2d 1218 (Fla.1985).

The facts pertaining to petitioner's prior history do support the second reason given, escalation of violent behavior. In 1971 Keys was placed on three years probation for breaking and entering with intent to commit a felony. In 1973 his probation was revoked and he was sentenced to eighteen months incarceration. In 1975 he was charged with petty larceny for which he was fined and received a suspended jail sentence. In 1981 he was charged with sexual battery involving the use of a knife which resulted in his pleading guilty to aggravated assault resulting in three years incarceration. He was released in 1983. The instant offenses occurred in 1984 resulting in his pleas of guilty to sexual battery, robbery and aggravated battery. We find that this escalation from crimes against property to violent crimes against persons is a...

To continue reading

Request your trial
106 cases
  • Lipscomb v. State, 89-213
    • United States
    • Florida District Court of Appeals
    • January 31, 1991
    ...a valid reason if based on facts that demonstrate the type of escalating or persistent pattern described with approval in Keys [v. State, 500 So.2d 134 (Fla.1986) ], Williams I [v. State, 504 So.2d 392 (Fla.1987) ], [State v.] Rousseau [509 So.2d 281 (Fla.1987) ], and Jones, providing the t......
  • Salas v. State
    • United States
    • Florida District Court of Appeals
    • May 17, 1989
    ...not only a pattern of increasing criminal conduct, but also an increase in the nature and severity of the crimes. See Keys v. State, 500 So.2d 134 (Fla.1986); Gales v. State, 515 So.2d 431 (Fla. 4th DCA 1987); Ballard v. State, 501 So.2d 1285 (Fla. 4th DCA), review denied, 488 So.2d 67 (Fla......
  • Booker v. State
    • United States
    • Florida Supreme Court
    • September 24, 1987
    ...pattern of criminal activity, is a valid reason for departure and is amply supported by the facts in this case. See Keys v. State, 500 So.2d 134, 135-136 (Fla.1986) (escalating course of criminal conduct from crimes against property to violent crimes against person is a valid reasons for Th......
  • Mitchell v. State, 4-86-3023
    • United States
    • Florida District Court of Appeals
    • February 10, 1988
    ...a similar offense, see Nixon v. State, 494 So.2d 222 (Fla. 1st DCA 1986), and (2) the escalating nature of his offenses, see Keys v. State, 500 So.2d 134 (Fla.1986). The appellant correctly notes that the due process clause prohibits trial judges from vindictively penalizing criminal defend......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT