Sellers v. State, BI-157
| Decision Date | 22 December 1986 |
| Docket Number | No. BI-157,BI-157 |
| Citation | 12 Fla. L. Weekly 129,499 So.2d 43 |
| Parties | 12 Fla. L. Weekly 129 Robert Allen SELLERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Larry G. Bryant, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.
This cause is before us on appeal from a judgment and sentence adjudicating appellant guilty of grand theft and sentencing appellant outside the guidelines to three years of imprisonment. Appellant has raised three issues; we affirm in part and reverse in part.
First, we affirm the trial court's decision to restrict the cross-examination of a witness, as no abuse of the trial court's discretion has been demonstrated. See Powe v. State, 413 So.2d 1272 (Fla. 1st DCA 1982).
Next, relying on Mincey v. State, 460 So.2d 396 (Fla. 1st DCA 1984), we hold that the trial court is not required to give appellant notice of its intention to depart from the sentencing guidelines. Further, contrary to appellant's assertion, we do not find Flemmings v. State, 476 So.2d 292 (Fla. 3d DCA 1985), in conflict with our position. Specifically, we agree that "it seems clear that abuse of discretion is present where the court considers factors which are irrelevant or unreliable." Id. at 293. Stated alternatively, this court requires that the reasons a trial court states for departing from the recommended guidelines sentence must be supported by evidence in the record. See Battles v. State, 483 So.2d 849 (Fla. 1st DCA 1986). Accordingly, we recognize that, in some circumstances, a factfinding sentencing proceeding may be required.
Finally, we reverse and remand for resentencing. In departing from the recommended guidelines range, the trial court impermissibly relied on the fact that appellant had been "arrested 29 times since 1973." Rule 3.701(d)(11), Florida Rules of Criminal Procedure, prohibits a departure from the recommended guidelines based on prior arrests without convictions. In this case, ten of the 29 arrests are not supported by convictions. Further, appellant's convictions were already factored into the recommended guidelines sentence and cannot support departure. See State v. Mischler, 488 So.2d 523 (Fla.1986). Accordingly, we affirm in part, reverse in part, and remand for resentencing.
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Lumpkin v. State, 86-3058
...128 (Fla.1985) (prior arrests without convictions are not a valid reason for departing from sentencing guidelines); Sellers v. State, 499 So.2d 43 (Fla. 1st DCA 1986) (same); Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984) (same). Since Lumpkin was not charged with robbery against the ch......
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Clark v. State, s. 89-1503
...arrests and charges of criminal activity which have not culminated in convictions 6 for scoring or departure reasons. Sellers v. State, 499 So.2d 43, 44 (Fla. 1st DCA 1986). The second reason given by the trial court might be legally sufficient, however. Basically, a harsher punishment was ......
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Williams v. State, 90-1609
...we reverse and remand for sentencing within the guidelines. See section 921.001(5), Florida Statutes (1987); see also, Sellers v. State, 499 So.2d 43 (Fla. 1st DCA 1986). We also note that a defendant's "refusal to 'adhere to the requirements of alternate sentencing' ... is insufficient by ......