Mitchell v. State, BJ-113
| Decision Date | 14 May 1987 |
| Docket Number | No. BJ-113,BJ-113 |
| Parties | 12 Fla. L. Weekly 1228 Ronald P. MITCHELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and John M. Koenig, Asst. Atty. Gen., Tallahassee, for appellee.
Ronald Mitchell appeals his sentence. He contends that (1) the trial court erred in sentencing him based on an inaccurate guidelines scoresheet, and (2) the trial court's reasons for departing from the recommended guidelines sentence are invalid.
Appellant was charged in separate informations with burglary of a structure (§§ 810.02(1) & (3), Fla.Stat. (1985), a third degree felony), second degree grand theft (§ 812.014, Fla.Stat. (1985), a third degree felony), and conspiracy to escape (§§ 777.04(4)(c) & 944.40, Fla.Stat. (1985), a third degree felony), based on three separate incidents. He pled guilty to all three charges. The sentencing guidelines scoresheet improperly scored ten points for two prior misdemeanor convictions for theft in the repeat multiplier for category 6 offenses. Appellant's counsel objected to this improper scoring during the sentencing hearing, and the judge stated he was aware of the cases holding such scoring improper. Counsel for the state admitted that the scoring was improper, but no corrected scoresheet was prepared. As originally prepared, the scoresheet recommended two and one-half to three and one-half years' incarceration. Corrected, the scoresheet would have recommended twelve to thirty months' incarceration or community control. The judge departed from the recommended sentence and sentenced appellant to four years in state prison on each charge, to run concurrently.
A scoresheet should accurately reflect the recommended sentence for the defendant. When it does not the trial judge should, when the discrepancy is brought to his attention, correct the scoresheet to reflect the accurate numbers. Although the judge did not correct the scoresheet after being apprised of the improper scoring, this fact alone is not necessarily reversible error because the trial judge knew the correct recommended range. See Stokes v. State, 476 So.2d 313 (Fla. 1st DCA 1985). Since we reverse on other grounds, however, the scoresheet should, on remand, be amended to reflect the correct score.
The judge gave the following five reasons for departure from the guidelines:
1. [The defendant's] History of criminal activities leads the court to the conclusion that the defendant is a non-rehabilitative career criminal.
2. Defendant has exhibited an escalating pattern of criminal conduct.
3. The defendant has prior juvenile convictions which, because of staleness could not be scored, but, nevertheless, indicate his total disrespect for the property of others.
4. The protection of the community necessitates a sentence in excess of that recommended by the guidelines.
5. The sentence herein imposed is necessary to deter others from committing similar acts.
The first reason cited by the trial judge has been upheld in special circumstances 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 sentence, and several old unscored juvenile convictions (relied on in reason 3), to support the conclusion that appellant is "a non-rehabilitative career criminal." In calculating the guidelines score, a defendant's prior record, to the extent it is a factor already scored, does not constitute a valid reason for departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985). We do not find in this record the special circumstances relied on in Booker and McCoy.
A defendant's escalating pattern of criminal conduct has, where supported by the record, also been upheld as a valid reason for departure. E.g., Chaplin v. State, 488 So.2d 555 (Fla. 1st DCA), review denied, 494 So.2d 1150 (Fla.1986). Here, however, there is no evidence showing that appellant has engaged in an escalating pattern of conduct. All of appellant's convictions are for third degree felonies. Appellant's juvenile record includes two grand thefts and two burglaries, the same crimes for which appellant is being sentenced here. Because there is no evidence in the record to support the conclusion that appellant's conduct was escalating, the reason is invalid.
The trial judge's third reason for departing from the guidelines is valid. Weems v. State, 469 So.2d 128 (Fla.1985).
The trial judge's fourth and fifth reasons for departure are invalid. Williams v. State, 492 So.2d 1308 (Fla.1986), held it improper for a trial judge to base departure on his perception that the recommended sentence under the guidelines is not commensurate with the seriousness of the offense. Likewise, the "protection of the community" is an invalid reason for departure. E.g., Scott v. State, 484 So.2d 100 (Fla. 1st DCA 1986); Frank v. State, 490 So.2d 190 (Fla. 2d DCA 1986). The necessity of deterring others from similar acts has also been held invalid as a reason for departure. Smith v. State, 482 So.2d 469 (Fla. 5th DCA 1986); Cason v. State, 481 So.2d 1006 (Fla. 1st DCA 1986).
Thus, of the five reasons given for departure, only one is valid. In most cases, this would merit reversal without further comment. Here, however, the trial judge included the following language in his written reasons for departure:
If one or more of the foregoing reasons for departure are determined, upon appellate review, to be impermissible, it would still be the decision of this court to depart from the guidelines recommended sentence, upon the basis of the remaining permissible reason or reasons, and to impose the same sentence herein announced.
In order to uphold a departure based on both valid and invalid reasons, the reviewing court must find, beyond a reasonable doubt, that the sentencing judge would have departed even if he had not considered the invalid reasons. Casteel v. State, 498 So.2d 1249 (Fla.1987); Albritton v. State, 476 So.2d 158 (Fla.1985). The issue presented here is whether the language used by the trial judge establishes beyond a reasonable doubt that he would have imposed the same sentence for any one of the valid reasons stated. We conclude that it does not.
The supreme court rejected an amendment to the guidelines...
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