Sarvis v. State, AV-337
| Citation | 465 So.2d 573,10 Fla. L. Weekly 667 |
| Decision Date | 13 March 1985 |
| Docket Number | No. AV-337,AV-337 |
| Parties | 10 Fla. L. Weekly 667 Louie B. SARVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant seeks review of his judgment and sentence entered October 7, 1983, on charges of sale or delivery of cannabis and bail bond jumping in violation of sections 893.13(1)(a)2 and 843.15, Florida Statutes (1983). He alleges three points for reversal:
1. The trial court erred in proceeding with the trial while appellant was in absentia.
2. The trial court improperly admitted evidence of a collateral crime.
3. The trial court erred in departing from the sentencing guidelines without clear and convincing reasons.
We affirm on points 1 and 2 and reverse on point 3.
On March 17, 1983, appellant was charged with the sale or delivery of cannabis, and trial was held May 26, 1983. At the outset of the trial, appellant moved for change of counsel on the ground that he was not sufficiently represented. The trial court denied the motion.
The evidence presented by the state showed that two undercover police officers drove up to the front of a cafe, rolled down their window, and were approached by appellant. They inquired if appellant was holding marijuana. After leaving the car momentarily, appellant returned with a manila envelope containing marijuana and sold it to the officers. Over appellant's objection, the state was allowed to introduce evidence that during surveillance of appellant after the buy the officers noticed appellant, with a manila envelope in his hand, approach another vehicle in the same manner he had approached their vehicle.
After the state rested, appellant's counsel indicated he had no witnesses to present at that time but that he needed to talk to potential witnesses that night. Court was adjourned until the following day. When court reconvened, defendant was not present and could not be located. The trial court permitted a continuance until that afternoon, but upon reconvening defendant was still not present. The trial court found that defendant had voluntarily absented himself from court and had waived his right to be present during the remainder of the trial. When the court announced its intention to proceed, defense counsel objected because there was no evidence to explain defendant's absence. The objection was overruled. Defense counsel introduced no witnesses on behalf of appellant, and the jury found him guilty of the sale of cannabis.
A capias was issued for appellant's arrest, and an information was filed against him for bail bond jumping. Approximately four months later, he was arrested in California. He was returned to Florida and pled guilty to bail bond jumping. He elected to be sentenced under the sentencing guidelines for the cannabis and bail bond jumping offenses, and the guidelines sentence was calculated as twelve to thirty months incarceration. The court adjudicated defendant guilty and, departing from the guidelines, sentenced him to consecutive terms of five years for the sale of cannabis and thirty months for bail bond jumping.
We reject appellant's argument that the court erred in proceeding with his trial while he was not before the court. The Fifth Circuit's opinion in U.S. v. Benavides, 596 F.2d 137 (5th Cir.1979), relied on by appellant, is factually distinguishable. In Benavides, the defendant was absent for his entire trial, whereas in this case appellant was present during the first day of his trial, when the state presented all of its evidence. Accordingly, appellant was present to confront all witnesses against him. As indicated by the Florida Supreme Court in State v. Melendez, 244 So.2d 137 (Fla.1971), "where a defendant absents himself during his trial, with knowledge that his trial is underway, his absence shall not be permitted to interrupt the proceedings." Id. at 139.
As to appellant's second argument, we agree that the testimony regarding appellant's actions after he sold the marijuana to the officers was erroneously admitted. The testimony failed to establish commission of a collateral crime; rather, it merely impugned appellant's character and intimated criminal conduct without proof that a crime had been committed. Dibble v. State, 347 So.2d 1096 (Fla. 2d DCA 1977). In light of the overwhelming evidence of defendant's guilt, however, we find such error harmless.
Appellant's final argument is that the trial court failed to support its deviation from the sentencing guidelines by clear and convincing reasons, as required by rule 3.701 d.11, Florida Rules of Criminal Procedure. We agree.
Appellant's guidelines sentence for sale of cannabis and bail bond jumping was twelve to thirty months. See rule 3.701 d.12, Florida Rules of Criminal Procedure. The trial court sentenced appellant to a total of ninety months--three times the maximum guidelines sentence--setting forth the following reasons for such deviation:
The defendant absconded in the middle of his jury trial, fleeing from the state of Florida. He was apprehended in California some months later. He is contemptuous of the court system and defiant to all authority. He shows no remorse and laughs about his actions. The chances of his being rehabilitated in thirty months are nonexistent.
We hold that none of the reasons cited by the court are sufficiently "clear and convincing" to justify departure from the guidelines.
The first reason stated by the court was that appellant absconded in the middle of his trial and was apprehended in California several months later. This is an improper reason for departure because appellant's actions formed the basis for his conviction of bail bond jumping and had already been factored...
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