Snelling v. State, BL-276

• Decision Date: 30 December 1986
• Docket Number: No. BL-276,BL-276
• Citation: 12 Fla. L. Weekly 169,500 So.2d 328
• Parties: 12 Fla. L. Weekly 169 Russell SNELLING, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 328

500 So.2d 328

12 Fla. L. Weekly 169

Russell SNELLING, Appellant, v. STATE of Florida, Appellee.

No. BL-276.

District Court of Appeal of Florida First District.

Dec. 30, 1986.

David A. Davis, Asst. Public Defender, Pamela D. Presnell, Certified Legal Asst., Tallahassee, for appellant.

John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant appeals his enhanced sentence for ten theft-related third degree felonies, alleging that the trial court abused its discretion in departing from the recommended sentencing guidelines range. We affirm.

Appellant pled nolo contendere to three counts of grand theft, four counts of fraudulent use of a credit card, two counts of forgery, and one count of uttering a forged instrument. A guidelines scoresheet was prepared indicating a total of 22 points and a recommended sentencing range of any nonstate prison sanction. The trial court imposed a sentence of three years incarceration to be followed by seven years probation. The court gave its reasons for departure in writing as follows:

1. The defendant engaged in a crime spree. He committed a tremendous number of thefts in a relatively short period of time and in a relatively centralized location of the community--the campus of FAMU and FSU.

2. The presumptive guidelines sentence is not commensurate with the seriousness of these offenses.

3. After the defendant had been arrested and became aware of the serious nature of these offenses, he was freed on bond and nevertheless continued to commit the same type of criminal offenses. This demonstrates that the greater sentence imposed is necessary for the protection of the community.

In addition to setting forth the above reasons, the trial court concluded its order with the following paragraph:

If one or more of the foregoing reasons are determined, upon appellate review, to be impermissible, this court would nevertheless depart from the presumptive guidelines sentence, based upon the remaining permissible reason or reasons, and impose the same sentence as pronounced.

We find the first reason for departure clear and convincing. On several occasions, this court has held that the timing of the crimes committed is a valid basis for departure from the recommended sentencing guidelines. Decker v. State, 482 So.2d 511 (Fla. 1st DCA 1986); Sabb v. State, 479 So.2d 845 (Fla. 1st DCA 1985); Smith v State, 479 So.2d 804 (Fla. 1st DCA 1985); Mincey v. State, 460 So.2d 396 (Fla. 1st DCA 1984); Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984). In the instant case, appellant stole credit cards and personal checks which he used to obtain merchandise, services, and cash during an eleven-month period. The trial court included in its first reason for departure the geographical location of the crimes committed. We do not consider that this fact constitutes a separate reason for departure; rather, it serves to describe the crime spree itself.

The second reason for departure is invalid. Williams v. State, 492 So.2d 1308 (Fla.1986); Scurry v. State, 489 So.2d 25 (Fla.1986).

We find the third reason for departure clear and convincing. After the trial court had released appellant on his own recognizance, he committed two additional theft-related crimes. The sentencing guidelines simply do not take into account the circumstances surrounding the commission of these last two crimes or the time frame within which they were committed. This situation...