McCoy v. State, 85-201
| Decision Date | 05 February 1986 |
| Docket Number | No. 85-201,85-201 |
| Citation | 11 Fla. L. Weekly 369,482 So.2d 566 |
| Parties | 11 Fla. L. Weekly 369 Dwight McCOY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant, Dwight McCoy, was charged by information with possession and delivery of heroin in violation of section 893.13(1)(b) and (1)(a)(1), Florida Statutes (1983) and with delivery of cocaine in violation of section 893.13(1)(a)(1), Florida Statutes (1983). Appellant pled nolo contendere to the charges on November 5, 1984.
A sentencing hearing was held on December 7, 1984. The trial court departed from the recommended guideline sentence of "Community Control or 12-30 mos. incarceration" and sentenced appellant to thirty-five years imprisonment.
The issue before this court is whether the trial court had clear and convincing reasons to exceed the sentencing guidelines.
The trial court considered appellant's extensive criminal history a valid reason for departure. Such consideration was improper since appellant's prior convictions were taken into consideration in computing the recommended sentence. Hendrix v. State, 475 So.2d 1218 (Fla.1985). A review of the record, however, indicates that the court properly considered appellant's flagrant disregard of the law and his apparent failure to respond to past rehabilitative efforts. Booker v. State, 482 So.2d 414 (Fla. 2d DCA 1985).
When a departure sentence is grounded on both valid and invalid reasons, the sentence should be reversed unless the state shows beyond a reasonable doubt that the absence of invalid reasons would not have affected the departure sentence. Albritton v. State, 476 So.2d 158 (Fla.1985). Focusing on Albritton, we cannot determine that the absence of the invalid reason would not have affected the departure sentence. Accordingly, we reverse and remand for resentencing.
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Mitchell v. State, BJ-113
...where supported by clear and convincing evidence in the record. E.g., Booker v. State, 482 So.2d 414 (Fla. 2d DCA 1986); McCoy v. State, 482 So.2d 566 (Fla. 2d DCA 1986). Here, however, there is no evidence other than appellant's prior record, which was factored into the recommended sentenc......
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Riggins v. State, BF-261
...that had been factored into the scoresheet and therefore this reason could not be used as a basis for departure); and McCoy v. State, 482 So.2d 565 (Fla. 2d DCA 1986) (trial court's consideration of the defendant's extensive criminal history was an invalid reason for departure since defenda......
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Cassell v. State
...to appellant's resistance to rehabilitation may justify a departure. Booker v. State, 482 So.2d 414 (Fla. 2d DCA 1985); McCoy v. State, 482 So.2d 566 (Fla. 2d DCA 1986). In the event an appellate court cannot determine beyond a reasonable doubt that the trial court would have departed regar......