MacFarland v. State, 84-747
| Decision Date | 27 December 1984 |
| Docket Number | No. 84-747,84-747 |
| Citation | 462 So.2d 496,10 Fla. L. Weekly 43 |
| Parties | 10 Fla. L. Weekly 43 David W. MacFARLAND, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
The appellant plead guilty to a charge of burglary of a dwelling, a second degree felony. He appeals a sentence of three years' imprisonment followed by seven years' probation. Appellant's recommended guidelines sentence was three years' incarceration. We affirm.
The crime for which appellant was sentenced and the sentencing itself took place prior to July 1, 1984. At that time, Committee Note (d)(12) to Rule 3.701, Florida Rules of Criminal Procedure provided 1:
The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.
Rule 3.701(d)(11) however, authorizes departures from guidelines sentences when clear and convincing reasons are stated for such departure. Here, the court announced that it was considering appellant's prior record (the incarceration here was to be consecutive to a sentence presently being served) and the fact that the victims had suffered a great monetary loss for which appellant should be required to make restitution. The court concluded that restitution could be effected only if appellant got his life in order under supervision and became employed. It is clear from the record that the court believed that supervised probation was required for a lengthy period to enable appellant to make restitution of the $8,000 he had taken from the victims. Appellant's prior record is a valid basis for departure, Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984), as is the extent of the economic loss to the victims, Hankey v. State, 458 So.2d 1143 (Fla. 5th DCA 1984). In the light of the finding by the trial court that the lengthy period of supervised probation was required so as to enforce the required restitution, we cannot say that the court abused its sentencing discretion in departing from the recommended sentence. Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984).
AFFIRMED.
1 Effective July 1, 1984, Committee...
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...a departure sentence where the combined period of incarceration and probation exceeded the guideline sentence. MacFarland v. State, 462 So.2d 496 (Fla. 5th DCA 1984). Given a proper case for departure, there is no reason for a different result where the departure is in the nature of a reduc......
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...stating that, "Defendant needs additional probation time in order to make restitution." This reason was approved in MacFarland v. State, 462 So.2d 496 (Fla. 5th DCA 1984). However, that decision did not address Rule 3.701(b)(1), Fla.R.Cr.P., which provides that sentencing should be neutral ......
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Pierce v. State, s. AZ-442
...Butler, Asst. Atty. Gen., for appellee. PER CURIAM. AFFIRMED. See Wright v. State, 467 So.2d 322 (Fla. 1st DCA 1985); MacFarland v. State, 462 So.2d 496 (Fla. 5th DCA 1985). MILLS and NIMMONS, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, ...
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State v. Rice, 84-744
...a departure sentence where the combined period of incarceration and probation exceeded the guideline sentence. MacFarland v. State, 462 So.2d 496 (Fla. 5th DCA 1984). Given a proper case for departure, there is no reason for a different result where the departure is in the nature of a reduc......