Paschall v. State, 86-20

• Citation: 12 Fla. L. Weekly 459,501 So.2d 1370
• Decision Date: 06 February 1987
• Docket Number: No. 86-20,86-20
• Parties: 12 Fla. L. Weekly 459 Eugene L. PASCHALL, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1370

501 So.2d 1370

12 Fla. L. Weekly 459

Eugene L. PASCHALL, Appellant, v. STATE of Florida, Appellee.

No. 86-20.

District Court of Appeal of Florida Second District.

Feb. 6, 1987.

Ricky E. Williams of Williams and Westfield, P.A., Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for appellee.

SANDERLIN, Judge.

Paschall appeals the sentence he received following his plea of guilty to nine counts of armed robbery and one count of aggravated assault. He raises several points on appeal; however, we find merit only in his argument concerning sentencing errors.

At sentencing, the trial court made findings that Paschall was a habitual offender, and therefore, entered a sentence under chapter 775, Florida Statutes (1985). Alternatively, the court also entered a guidelines sentence, with departure. While we commend the trial court's effort to arrive at a valid sentence, we, nonetheless, find that in light of a recent supreme court decision, the sentencing was improper and must be reversed.

As to Paschall's sentence under the habitual offender act, we agree that the statute is not an alternative to the sentencing guidelines, nor is it a reason for departure. Whitehead v. State, 498 So.2d 863 (Fla.1986).

Since the habitual offender statute is therefore inapplicable below, we now consider the propriety of the trial court's departure from the guidelines sentence. At sentencing, a guidelines scoresheet was prepared and totaled 173 points. The recommended range suggested seven to nine years. Finding an exception was warranted, the trial court imposed a departure sentence. In its "Order For Clear And Convincing Reasons To Depart From The Guidelines," the court found:

In addition, even if the defendant had not been sentenced as an habitual offender, the Court finds the following clear and convincing reasons for departure upwards from the guidelines: that the defendant entered into a "one man crime spree"; that some of these offenses were committed while the defendant was out on bond for the same type of offenses; that the defendant discharged a firearm in two cases, creating a danger to the public at large; that there were multiple victims in some cases.

As in previous cases, we will address each reason for departure.

"One-man crime spree " is a valid reason for departure, if supported by the record. Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984). While there are problems with the trial court's "abbreviated, undetailed" reason, we are not precluded from reviewing the record to flesh out the factual support to ascertain the sufficiency of the reason. Vanover v. State, 498 So.2d 899 (Fla.1986). The record reveals that appellant committed two of the offenses for which he was convicted in October 1984, three offenses were committed in November 1984, and finally appellant committed four more of the offenses in March 1985. We find that this record supports the trial court's reason for departure.

Offenses committed while defendant was out on bond for the same type of offenses has been held an invalid reason for departure. See Echevarria v. State, 492 So.2d 1146 (Fla. 3d DCA 1986). In Echevarria the third district found that at the time of sentencing, the defendant had been arrested and released on bond, but had not been convicted for another offense. Accordingly, the court found this reason infirm because it was predicated on "factors relating to prior arrests without conviction." Id. at 1147 (citing Fisher v. State, 489 So.2d 857 (Fla. 1st DCA 1986)). In the present case, appellant was convicted for the offense for which he was out on bond, along with the offenses that he committed while out on bond. We note the fact that appellant was "out on bond" is not...