Neal v. State
| Decision Date | 18 April 1986 |
| Citation | 487 So.2d 367,11 Fla. L. Weekly 914 |
| Parties | 11 Fla. L. Weekly 914 Roy Lee NEAL, Appellant, v. STATE of Florida, Appellee. 85-1307. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
Defendant Roy Lee Neal appeals his judgments and sentences for aggravated assault and shooting within a building, violations of sections 784.021 and 790.19, Florida Statutes (1983). His sole contention is that in sentencing him, the trial court improperly departed from the sentencing guidelines. We agree.
A jury found defendant guilty of these offenses. At the sentencing hearing, defendant's guidelines scoresheet indicated a total of forty-six points which translated into a recommended sentence of any nonstate-prison sanction. A presentence investigation (PSI) report was introduced indicating defendant had two prior convictions for driving under the influence (DUI). However, the report did not show when defendant had committed these two prior offenses. No points were calculated on the scoresheet for the DUI offenses.
The trial judge sentenced defendant to three years for shooting within the building and sixty days for the assault. The judge based his decision to depart from the recommended guidelines sentence on the defendant's alleged perjury, the facts surrounding the instant offense, and defendant's prior DUI convictions.
Perjury is clearly an impermissible reason for departure. Pursell v. State, 483 So.2d 94 (Fla. 2d DCA 1986); Sloan v. State, 472 So.2d 488 (Fla. 2d DCA 1985). The other two reasons present more troublesome issues in this case.
In departing, the judge recited briefly the facts leading to defendant's arrest on the two charges for which he was convicted and sentenced here. Yet, the facts in this case do not show any egregious circumstances on which to base a departure. See Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA 1986). Thus, the facts surrounding these two offenses constituted an impermissible reason for departure.
As to the last reason, since the record does not indicate when defendant's two DUI offenses occurred, we cannot determine whether they would be a permissible reason for departure. Of course, if these convictions occurred within ten years of the instant offenses, they should have been scored. See Fla.R.Crim.P. 3.701(d)(5)(b). However, the scoring of these...
To continue reading
Request your trial
-
Evrard v. State, 85-1877
...not depart from the recommended guidelines sentence based upon the court's belief that the defendant lied to the court. Neal v. State, 487 So.2d 367 (Fla. 2d DCA 1986); Spivey v. State, 481 So.2d 100 (Fla. 3d DCA 1986); Jones v. State, 481 So.2d 516 (Fla. 4th DCA 1985); McBride v. State, 47......
-
Bogan v. State, 84-2679
...in the circumstances surrounding the commission of the crime so as to warrant departure from the guidelines. See Neal v. State, 487 So.2d 367 (Fla.2d DCA 1986). Similarly, the appellant's asserted perjury at trial, without subsequent conviction, and the appellant's past record of conviction......
-
Washington v. State
...(Fla. 2d DCA 1986). However, the facts must show egregious circumstances and must not be elements of the crime charged. Neal v. State, 487 So.2d 367 (Fla. 2d DCA 1986); Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA In the instant case, appellant was apprehended for shoplifting. She broke aw......
-
Johnson v. State, 86-888
...(Fla. 2d DCA 1986). However, the facts must show egregious circumstances and must not be elements of the crime charged. Neal v. State, 487 So.2d 367 (Fla. 2d DCA 1986); Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA 1986). Johnson's cavalier attitude is an improper ground for departure. Lack......