McGouirk v. State, AZ-362
| Decision Date | 13 May 1985 |
| Docket Number | No. AZ-362,AZ-362 |
| Parties | 10 Fla. L. Weekly 1183, 10 Fla. L. Weekly 1514 George Allen McGOUIRK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., John W. Tiedemann, Asst. Atty. Gen., for appellee.
McGouirk has filed a timely motion for rehearing alleging that our opinion of 13 May 1985 affirming the trial court's imposition of consecutive minimum mandatory sentences overlooked Palmer v. State, 438 So.2d 1 (Fla.1983), which held such sentences impermissible. Because the application of the Palmer decision was not specifically discussed in our previous opinion, that opinion is withdrawn and the following substituted therefor.
McGouirk appeals a sentence imposed outside the sentencing guidelines. He also contends that the trial court erred in imposing consecutive minimum mandatory sentences. We affirm.
First of all, we reject the State's contention that McGouirk did not properly preserve the guidelines issue for appeal by contemporaneously objecting to his sentence. See Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984); Thomas v. State, 461 So.2d 234 (Fla. 1st DCA 1984).
We further find that the reason expressed by the court for its departure, that the crime was "grotesque," showing "utter disregard for human [life]," is clear and convincing. See Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984) ().
The trial court did not err in imposing consecutive mandatory minimum sentences under Sections 775.087(2) and 790.161(3), Florida Statutes (1983). McGouirk alleges that such sentences were rendered impermissible by Palmer v. State, supra. However, the rationale behind this decision was that, because eligibility for parole was proscribed for the period of the mandatory sentence, "stacking" such sentences would result in parole ineligibility for a longer period than intended by the legislature. Such a concern does not exist when sentence is imposed using the guidelines, because parole is not available for persons sentenced thereunder. See Rule 3.701(b)(5), Florida Rules of Criminal Procedure.
Therefore, because the rationale of the Palmer decision renders it inapplicable when sentencing under the guidelines, we find that it does not...
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Jakubowski v. State, 85-1091
...cruelty and cold-bloodedness of a crime, Davis v. State, 489 So.2d 754 (Fla. 1st DCA 1986), or its grotesque nature, McGouirk v. State, 470 So.2d 31 (Fla. 1st DCA 1985), have been found to be valid reasons for departure. 2. This child was burned over thirty percent of his body, and testimon......
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Hubert v. State, 85-1374
...dies. Facts and circumstances relating to the manner in which a crime was committed may be a basis to "depart." See McGouirk v. State, 470 So.2d 31 (Fla. 1st DCA 1985); Murphy v. State, 459 So.2d 337 (Fla. 5th DCA 1984); Mincey v. State, 460 So.2d 396 (Fla. 1st DCA 1984). The problem in thi......
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Perez v. State, BG-24
...does not vitiate his right to appeal the issue to this court. Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984); McGouirk v. State, 470 So.2d 31 (Fla. 1st DCA 1985). Accordingly, the sentence imposed by the trial court is vacated and the matter is remanded for entry of a sentence within t......
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McGouirk v. State
...Jim Smith, Atty. Gen., and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for respondent. ADKINS, Justice. In McGouirk v. State, 470 So.2d 31 (Fla. 1st DCA 1985), the First District affirmed the defendant's sentence imposed in excess of the recommended guidelines sentence and the trial c......