Morrison v. State

• Decision Date: 20 April 2011
• Docket Number: No. 2D09–275.,2D09–275.
• Parties: William MORRISON, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

59 So.3d 308

William MORRISON, Appellant,
v.
STATE of Florida, Appellee.

No. 2D09–275.

District Court of Appeal of Florida, Second District.

April 20, 2011.

[59 So.3d 310]

James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.MORRIS, Judge.

William Morrison appeals the revocation of his probation and resulting sentence for two counts of lewd and lascivious conduct on a child under sixteen. We affirm the revocation of his probation without discussion. However, because the trial court imposed upward departure sentences without legal justification and improperly added legal status points, we reverse and remand for resentencing.

I. Background

The underlying crimes occurred between March 1 and March 28, 1995, and again on August 21, 1997. Morrison pleaded guilty and was sentenced to two 93.6–month prison terms followed by five years' probation. In September 2007, affidavits of violation of probation were filed alleging that Morrison had unsupervised contact with children and committed a new law violation. However, at the violation of probation (VOP) hearing, the trial court determined that the State failed to prove the new law violation and Morrison's probation was revoked solely on the basis of his unsupervised contact with children. For both counts, the trial court imposed consecutive upward departure sentences of fifteen years in prison.

Morrison filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) wherein he challenged the upward departure sentences as well as the inclusion of legal status points on his scoresheet, but that motion was denied. We conclude, however, that Morrison is entitled to relief.

II. Analysis

“ ‘The level of proof necessary to establish facts that support a departure from the sentencing guidelines is a preponderance of the evidence.’ ” Powanda v. State, 8 So.3d 1230, 1232 (Fla. 2d DCA 2009) (quoting § 921.001(4)(a)(6), Fla. Stat. (2007)). “ ‘This aspect of the [trial] court's decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent[,] substantial evidence supports its rulings.’ ” Id. (first alteration in original) (quoting Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)); see also § 921.001(6), Fla. Stats. (1995) & (1997) (providing that departure sentence shall be upheld when at least one factor justifies departure regardless of whether other factors do not justify departure).

A. Vulnerability of the victim

The first factor cited by the trial court to justify an upward departure was the vulnerability of the victims in the underlying cases. Section 921.0016(3)(j) permits an upward departure if this factor is proven. However, the State failed to offer proof of this factor at the VOP hearing.

[59 So.3d 311]

Because no such proof was adduced at the VOP hearing, we sought the transcripts of the plea hearings in the 1995 and 1997 cases to see if the State proved that factor during those proceedings. See Powanda, 8 So.3d at 1232 (noting lack of proof regarding victim's vulnerability at the VOP hearing, as well as at the plea hearing on the underlying charge). After receiving notice from the clerk of the circuit court that the transcripts have been destroyed, we relinquished jurisdiction pursuant to Florida Rule of Appellate Procedure 9.200(b)(4) and (f)(2) so that Morrison could prepare a statement of the evidence or proceedings. Morrison submitted a statement of the facts to the trial court, and because the State filed no objection and no response, the trial court approved the statement as submitted. Attached to the statement of the facts was an affidavit wherein Morrison stated that the two plea hearings were brief and without testimony.

In Powanda, the appellant's underlying charge was sexual contact with a child twelve years of age or older, but less than eighteen years of age. We reversed Powanda's upward departure sentence because “neither party presented any evidence about the victim's vulnerability at either Mr. Powanda's violation of probation hearing or at his 1999 plea hearing.” 8 So.3d at 1232. In so...