Mincey v. State, AW-299
| Decision Date | 09 November 1984 |
| Docket Number | No. AW-299,AW-299 |
| Citation | 460 So.2d 396 |
| Parties | Robert M. MINCEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender, David A. Davis, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
Mincey appeals from two concurrent 25-year prison sentences. He raises three issues on appeal. We find each issue meritless and affirm.
Mincey was charged with committing two robberies with a firearm, the first on 30 April 1983 and the second on 3 May 1983. He pleaded guilty to both offenses and affirmatively selected sentencing pursuant to Florida Rule of Criminal Procedure 3.701. The recommended range under the sentencing guidelines was 3 1/2 to 4 1/2 years incarceration.
At the sentencing hearing, the trial court departed from the recommended range and sentenced Mincey to two concurrent 25-year prison terms. The reasons for departure were stated in a written document.
The first issue raised is whether the sentencing procedure followed by the trial court violated the due process provisions of Article I, Section 9 of the Florida Constitution and Amendments V and XIV of the United States Constitution. Mincey contends the sentencing guidelines enhance a defendant's liberty interest to the extent traditional sentencing procedure no longer provides adequate due process protections. He argues the trial court must inform a defendant prior to the sentencing hearing that it intends to exceed the recommended range and the reasons therefor. Only in this manner, Mincey argues, will a defendant have the opportunity to effectively contest imposition of a sentence beyond the recommended range.
We reject this contention because imposition of any sentence within the statutory limit, whether or not the sentence exceeds the recommended range, is still a matter within the trial court's discretion. Florida Rule of Criminal Procedure 3.701(b)(6). Of course, that discretion is subject to the "clear and convincing" standard, but it does not follow that a defendant is therefore entitled to the full panoply of due process rights every time a trial court announces it intends to aggravate a sentence beyond the recommended range. See, Arnett v. State, 397 So.2d 330 (Fla.1st DCA 1981), cert. denied, 408 So.2d 1092 (Fla.1981).
Arnett involved a challenge to the constitutionality of Section 947.16(3), Florida Statutes (1979), which allows the trial court to retain jurisdiction over some offenders for review of a Parole Commission release order. One of the arguments advanced was that the statute violated due process requirements because it did not provide for notice of proceedings to retain jurisdiction or for a hearing to defend against retention. The court stated:
The statute itself provides the defendant adequate notice that the trial court judge may retain jurisdiction. An opportunity to defend against retention is provided by the right to offer "submissions and evidence ... which are relevant to the sentence" at the sentencing hearing. Fla.R.Crim.P. 3.720(b).
Likewise, Rule 3.701 provides notice to defendants that the trial court may depart from the recommended range. In the case before us, the record also reflects Mincey was informed at the time he entered his pleas of guilty, 13 days before the sentencing hearing, that the trial court could depart from the recommended range and impose a more severe sentence. Mincey had the opportunity to argue against aggravation of the sentences pursuant to Rule 3.720(b).
The second issue raised is whether the reasons given by the trial court for departure from the recommended range are clear and convincing. This issue is appealable as a matter of right. Mitchell v. State, 458 So.2d 10 (Fla.1st DCA 1984) [9 FLW 2107].
The reasons for departure are:
1. The Defendant committed and plead guilty to two Armed Robbery which were committed within a four-day period on two separate business establishments in Duval County, Florida.
2. In each instance, he had a accomplice and in each case was armed with a shotgun and a revolver.
3. At the time of the robberies in each instance the Defendant and his companion actively participated in the threatening of the victims with death or great bodily harm. The Defendant manifested a real presence of immediate danger, particularly in Case Number 83-4557-CF, where he ordered the sole female clerk of the liquor store to lie on the floor as they threatened to kill her.
4. The robbery committed in the instance of Case Number 83-4557-CF, was carried out after an inside employee intentionally or inadvertently furnished information to the Defendant and his companion as to when would be the most conducive time to stage a successful...
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Bailey v. State, BE-403
...to the extent that they describe unscored circumstances surrounding the crime and indicate excessive force and cruelty, Mincey v. State, 460 So.2d 396 (Fla. 1st DCA 1984). See also, Gale v. State, 483 So.2d 53 (Fla. 1st DCA 1986); Davis v. State, 489 So.2d 754 (Fla. 1st DCA 1986), on motion......
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...retribution, deterrence and rehabilitation under the guidelines sentence to be an acceptable reason for departure. Mincey v. State, 460 So.2d 396 (Fla. 1st DCA 1984); Williams v. State, 454 So.2d 756 (Fla. 1st DCA 1984). This court has not agreed, however, and the Florida Supreme Court has ......
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Braggs v. State, 87-883
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...sentences are without doubt commensurate with the seriousness of the offenses committed by him. Seritt; and cf. Mincey v. State, 460 So.2d 396 (Fla. 1st DCA 1984). Accordingly, based on the foregoing, we MILLS and ERVIN, JJ., concur. ...