Spivey v. State, s. 84-2545
| Decision Date | 07 January 1986 |
| Docket Number | Nos. 84-2545,84-2576,s. 84-2545 |
| Citation | 481 So.2d 100,11 Fla. L. Weekly 159 |
| Parties | 11 Fla. L. Weekly 159 Lawrence Manning SPIVEY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Sam W. Kleinfeld, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Michael J. Niemand and G. Bart Billbrough, Asst. Attys. Gen., for appellee.
Before BARKDULL, HUBBART and NESBITT, JJ.
This is an appeal from a probation revocation order and a series of sentences totaling fifteen years imprisonment. We find no merit in any of the points raised on appeal with reference to the probation revocation order and summarily affirm said order without further discussion. However, we reverse the sentences imposed herein and remand the cause to the trial court with directions to resentence the defendant. We reach the latter conclusion based on the following, briefly stated legal analysis.
First, the trial court departed from the sentencing guidelines established by Fla.R.Crim.P. 3.701 when it imposed sentences totaling fifteen years imprisonment inasmuch as the guidelines scoresheet prepared in the cause called for a sentence of 12-30 months imprisonment. Second, the trial court gave, in effect, three reasons for departing from the sentencing guidelines, only one of which constitutes a clear and convincing reason for departing from said guidelines--namely, that the defendant violated his probation by committing two new offenses within one month of being placed on probation and has thereby shown that he cannot live by the rules of society. See, e.g., Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); see generally Mischler v. State, 458 So.2d 37, 41 nn. 7, 14 (Fla. 4th DCA 1984). Third, the state concedes that the trial judge gave two other invalid reasons which are unsupported by the record for departing from the sentencing guidelines, namely, that the defendant lied while testifying at the probation revocation hearing and has shown no remorse for his crimes. Trainor v. State, 468 So.2d 484, 485-86 (Fla. 2d DCA 1985); Sarvis v. State, 465 So.2d 573, 576 (Fla. 1st DCA 1985). Fourth, the state has failed to establish beyond a reasonable doubt that the absence of the invalid reasons, stated above, would not have affected the departure sentence. Stated differently, the state has failed...
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...Rice, 464 So.2d 684 (Fla. 5th DCA 1985); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984). --------------- 1 See also Spivey v. State, 481 So.2d 100 (Fla. 3d DCA 1986), where this court held that a defendant's violation of probation by committing two new offenses within one month after be......
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...based upon the court's belief that the defendant lied to the court. Neal v. State, 487 So.2d 367 (Fla. 2d DCA 1986); Spivey v. State, 481 So.2d 100 (Fla. 3d DCA 1986); Jones v. State, 481 So.2d 516 (Fla. 4th DCA 1985); McBride v. State, 477 So.2d 1091 (Fla. 4th DCA 1985); Bowdoin v. State, ......
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Ree v. State, 4-86-0650
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