McBride v. State, 84-1169
| Decision Date | 06 November 1985 |
| Docket Number | No. 84-1169,84-1169 |
| Citation | 477 So.2d 1091,10 Fla. L. Weekly 2488 |
| Parties | 10 Fla. L. Weekly 2488 Alphonse McBRIDE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., West Palm Beach, for appellee.
From a conviction of robbery without a firearm, or other deadly weapon, appellant seeks reversal of the trial court's imposition of an aggravated sentence of fifteen years in prison.
Appellant, an admitted transvestite, was engaged in prostitution when the crime involved here was committed. He had a history of convictions for carrying a concealed firearm, robbery, and petit theft. The trial judge elected to depart from the guidelines sentence of thirty months to three and one-half years' imprisonment and sentenced appellant to fifteen years because of appellant's prior convictions, the fact that he lied at trial, and the judge's belief he would repeat his pattern of unlawful conduct.
The sole point on appeal is whether the trial court erred in departing from the sentencing guidelines and in imposing the maximum sentence allowed by law.
A sentencing court may not use prior convictions as a ground for deviation from the guidelines. Hendrix v. State, 475 So.2d 1218 (Fla.1985); Bowdoin v. State, 464 So.2d 596 (Fla. 4th DCA 1985); Callaghan v. State, 462 So.2d 832 (Fla. 4th DCA 1984). The trial judge's belief that the defendant lied in his defense at trial is also not an accepted ground for deviation. Kossow v. State, 468 So.2d 1104 (Fla. 2d DCA 1985). Further, we held in Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1985), that the possibility of defendant's committing further crimes does not constitute a valid ground for departing from the guidelines. See also Lindsey v. State, 453 So.2d 485 (Fla. 2d DCA 1984).
Next, we treat the extent of the deviation from the guideline sentence. As stated above, the guideline sentence was thirty months to three and one-half years. So the sentence imposed exceeds the guideline sentence by five times. We learned from Albritton v. State, 476 So.2d 158 (Fla.1985), that the maximum statutory punishment allowed by law is not the only lawful limitation on the extent of departure from a guidelines sentence. The standard of review is whether the trial judge abused his discretion in the extent of the...
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Evrard v. State, 85-1877
...2d DCA 1986); Spivey v. State, 481 So.2d 100 (Fla. 3d DCA 1986); Jones v. State, 481 So.2d 516 (Fla. 4th DCA 1985); McBride v. State, 477 So.2d 1091 (Fla. 4th DCA 1985); Bowdoin v. State, 464 So.2d 596 (Fla. 4th DCA 1985). We find that the reasoning of the above authorities applies here. Mo......
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Dixon v. State, 85-1644
...had no record prior to this case. In addition, speculation about possible conduct is not a valid reason for departure. McBride v. State, 477 So.2d 1091 (Fla. 4th DCA 1985); Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984), aff'd, 477 So.2d 565 (Fla.1985); Lindsey v. State, 453 So.2d 485 (Fl......
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Booker v. State, s. 85-408
...we cannot say that it was unreasonable for the trial judge to sentence the defendant as he did in this case. But see McBride v. State, 477 So.2d 1091 (Fla. 4th DCA 1985), holding that the trial judge abused his discretion in exceeding the guidelines sentence by five times. The supreme court......
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Hall v. State, 86-409
...this reason has been held not to be a valid basis for departure. Dixon v. State, 492 So.2d 410 (Fla. 5th DCA 1986); McBride v. State, 477 So.2d 1091 (Fla. 4th DCA 1985). Reason number two can only be characterized as an expression of belief by the court that the recommended guideline senten......