Patten v. State, 86-2928

• Decision Date: 07 September 1988
• Docket Number: No. 86-2928,86-2928
• Citation: 531 So.2d 203,13 Fla. L. Weekly 2123
• Parties: 13 Fla. L. Weekly 2123 Harvey Lewis PATTEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 203

531 So.2d 203

13 Fla. L. Weekly 2123

Harvey Lewis PATTEN, Appellant, v. STATE of Florida, Appellee.

No. 86-2928.

District Court of Appeal of Florida Second District.

Sept. 7, 1988.

James Marion Moorman, Public Defender, and A. Anne Owens, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PARKER, Judge.

This is Patten's second appeal of his sentence for grand theft. He again attacks the trial judge's departure upward from the recommended guidelines sentence. We reverse.

In reversing, we are fully cognizant of the frustrations which the trial court faced when it sought to resolve the anomalous situation presented by this case. However, we believe the scope of the case law interpreting the sentencing guidelines prohibits the instant departure. Although the sentence imposed in this case seems logical, the application of the sentencing guidelines to particular circumstances continues to defy logic.

Patten committed the primary offense of grand theft in Polk County on January 13, 1985. He was convicted of that offense on July 25, 1985 and, on appeal, this court affirmed his conviction but reversed the departure sentence of community control. ¹ Patten v. State, 492 So.2d 748 (Fla. 2d DCA 1986). By mandate issued on August 19, 1986, this court directed the trial court on remand to sentence Patten "in accordance with the suggested guidelines" which initially called for a first cell sentence of any nonstate prison sanction. On resentencing, which occurred on October 16, 1986, the trial court imposed a three-year term of imprisonment yielding a third cell treatment under the guidelines. Between the date of his original Polk County offense and the date of the resentencing on that offense, Patten committed another grand theft in Hillsborough County for which he was convicted and placed on probation on May 23, 1986. Because Patten used the alias of Eddie Smith in Hillsborough County, his Polk County offenses were not discovered and therefore were not factored into the Hillsborough County sentence. Since, upon resentencing for the Polk County crime, the trial judge could not consider Patten's subsequently committed Hillsborough County offense as prior record, he used it as a ground for departure. The trial judge below, in his order of departure, said:

[T]he defendant absconded from his community control program which was not superseded on appeal. In addition, the defendant was convicted of grand theft on May 23, 1986, in Hillsborough County and sentenced to probation. The defendant was arrested and convicted in Hillsborough County under the fictitious name of Eddie Smith.

Initially, it is important to note that Patten's sentence on remand, which once more represented a departure from the recommended range, violated the express mandate of this court. Absent permission to do so, a trial court is without authority to alter or evade a district court of appeal's mandate but, rather, must give precise effect to that dictate. Stuart v. Hertz Corp., 381 So.2d 1161 (Fla. 4th DCA 1980).

Setting aside the trial court's lack of observance of this court's dictate, this appeal turns upon the appropriate interpretation of Shull v. Dugger, 515 So.2d 748 (Fla.1987), as it applies to the present circumstances. The dissent interprets Shull in such a manner as to allow a post-sentencing conviction to be used as a new basis for exceeding the presumptive range upon remand, following the reversal of a departure sentence in which all the reasons stated in the original departure order were found to be invalid. According to the dissenting opinion, since the grand theft conviction did not exist at the time of the original sentencing, it is not prohibited by Shull and Brumley v. State, 520 So.2d 275 (Fla.1988), which follows the holding in Shull, as a ground for departure upon resentencing. Such a strained interpretation of Shull and its attendant implications compel us to disagree with the dissent.

The reasoning of the dissent is incompatible with the supreme court's expressed intent in its Shull decision that

We believe the better policy requires the trial court to articulate all of the reasons for departure in the original order. To hold otherwise may needlessly subject the defendant to unwarranted efforts to justify the original sentence and also might lead to absurd results. One can envision numerous resentencings as, one by one, reasons are rejected in multiple appeals. Thus, we hold that a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court.

Shull, 515 So.2d at 750.

The dissent seizes upon the following quoted language from Brumley (citing Shull ) that "a trial court must articulate all of the reasons for departure in the original order and cannot enunciate any new reasons for departure after reversal of the original sentence," to support its conclusion in this case. That language, however should be examined in the context in which it arose. By including this language in its Brumley opinion, the supreme court merely sought to prohibit an exception which had been drawn by the district courts to the general rule requiring resentencing within guidelines under circumstances similar to those present in this case. Shull, 515 So.2d at 749-50. The exception which was created involved those situations in which the sole departure reason was valid at the time of sentencing but subsequently became invalid by virtue of a supreme court decision, for example, habitual offender status. In those particular cases of which Brumley was one, the appellate courts had held that the trial court on remand could again depart if it could state valid reasons for departure which existed in the record at time of the original sentencing.

Although the supreme court in Brumley only directed its holding to the specific circumstances before it, which are different from those presented in this case--departure reasons here occurred after original sentencing--Brumley nonetheless signifies the supreme court's rejection of an exception being created to the general rule stated in Shull similar to that sought to be established by the dissent. Shull clearly enunciates that on remand after a reversal of a guidelines departure for failure to provide a valid reason for the departure, the trial court is prohibited from providing any new reasons to exceed the original recommended sentence. Brumley simply restates the holding of Shull. Both cases unequivocally prohibit new reasons for departure after reversal of the original sentence.

Under the dissent's interpretation of Shull, the departure grounds stated by the trial court on resentencing, if valid, would support affirming Patten's sentence since all these reasons occurred after the original sentencing. The first and third reasons, however, are invalid. The first reason contained in the resentencing order that "defendant absconded from his community control program" is not a valid ground to depart beyond the one cell bump permitted under the guidelines. See Fla.R.Crim.P. 3.701(d)(14); Myrick v. State, 497 So.2d 728 (Fla. 2d DCA 1986).

We perceive no inconsistency with our interpretation of Shull had the trial court on resentencing merely enhanced Patten's sentence one cell from the original recommended sentence of "any nonstate prison sanction" under the above rule for his violation of community control. ² See Royal v. State, 508 So.2d 1313 (Fla. 2d DCA 1987); Lockett v. State, 516 So.2d 46 (Fla. 4th DCA 1987). Such a one cell enhancement does not produce a departure sentence with the accompanying requirement of reasons but, rather, is consistent with the imposition of the "appropriate guidelines sentence" required under Shull and falls within the "suggested sentencing guidelines" mandated by this court. See Patten, 492 So.2d at 748. Therefore, there is no reason why on further resentencing, the trial court may not be permitted to impose the enhanced sentence of community control or twelve to thirty months incarceration. See Fla.R.Crim.P. 3.701(d)(14). The third reason listed as a basis for departure, i.e., that Patten furnished a fictitious name when arrested on a subsequent grand theft charge in Hillsborough County, is also improper. See Fla.R.Crim.P. 3.701(d)(11); Denson v. State, 493 So.2d 60 (Fla. 2d DCA 1986).

The dissent, however, focuses on the second reason offered by the trial judge for departure--subsequent grand theft conviction--as the basis for upholding Patten's sentence. In support of its position, the dissent relies upon a line of cases represented by Merriex v. State, 521 So.2d 249 (Fla. 1st DCA 1988); Pugh v. State, 499 So.2d 54 (Fla. 1st DCA 1986); Falzone v. State, 496 So.2d 894 (Fla. 2d DCA 1986); Prince v. State, 461 So.2d 1015 (Fla. 4th DCA 1984); Davis v. State, 455 So.2d 602 (Fla. 5th DCA 1984). ³ These cases all involve an interpretation of "prior record," defined under Florida Rule of Criminal Procedure 3.701(d)(5)(a), as those offenses which were committed before the primary offense at conviction and for which convictions were also obtained. Following from that definition, the courts in those cases held that such subsequent criminal conduct not factored as "prior record" could be used as a proper means to deviate from the recommended sentence.

By comparison in Smith v. State, 518 So.2d 1336 (Fla. 5th DCA 1987), which the dissent relies upon by analogy in support of its opinion, the court held that offenses committed before the primary offense but for which convictions were not obtained until after initial sentencing could be scored as "prior record" on resentencing. The result in Smith was an increased presumptive range while still yielding a sentence "within the presumptive guidelines range," (emphasis supplied) as directed by the district court in ...