State v. McGriff, 96-02989
| Decision Date | 08 August 1997 |
| Docket Number | No. 96-02989,96-02989 |
| Citation | 698 So.2d 331 |
| Parties | 22 Fla. L. Weekly D1967 STATE of Florida, Appellant, v. Bruce J. McGRIFF, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, Bartow, and Carol J.Y. Wilson, Assistant Public Defender, Clearwater, for Appellee.
The State of Florida appeals the downward departure sentence that the trial court imposed upon Bruce J. McGriff after he entered a plea of nolo contendere to the charges of attempted robbery in Case No. 95-12172CFANO and to battery on a law enforcement officer and resisting arrest without violence in Case No. 95-18629CFANO. We reverse because the trial court's reasons for departure are invalid. Because the sentencing error is an unauthorized departure, which is apparent on the face of the record, the state's failure to object to the trial court's failure to orally articulate the departure reasons is not fatal to its appeal of the downward departure sentence. See Tran v. State, 667 So.2d 812, 814 (Fla. 2d DCA 1995).
The trial court listed four reasons for departure, none of which are valid. The first reason, that "these cases do not require a lengthy prison [term]," is an expression of the trial court's disagreement with the sentencing guidelines. Without at least one other valid reason, departure is unauthorized. Scurry v. State, 489 So.2d 25, 29 (Fla.1986). See also State v. Lerman, 624 So.2d 849 (Fla. 2d DCA 1993).
The second reason the trial court gave was that there was no personal injury, no loss of property, and no firearm used. The second reason is invalid because these factors are taken into consideration when the scoresheet is completed. The attempted robbery charge means that no property was taken. Furthermore, the scoresheet provides for victim injury and for use of a firearm and, thus, these factors have been contemplated by the guidelines. See State v. Baker, 498 So.2d 1031, 1032 (Fla. 1st DCA 1986); see also State v. Scott, 611 So.2d 596, 597 (Fla. 2d DCA 1993) ().
The third reason the court listed was that McGriff cooperated in resolving the current offenses or other offenses. The third basis for departure is a listed mitigating factor; however, merely pleading guilty is not sufficient evidence to support this basis for departure. See State v. Collins, 482 So.2d 388 (Fla. 5th DCA 1985). There is nothing in the record to support that McGriff cooperated to resolve these or any other offenses.
Finally, the fourth reason for departure was that the offenses were committed in an unsophisticated manner. We note that the trial court marked through the remaining portion of the printed language on the sentencing form which states that the offenses were "isolated incident[s] for which the defendant has shown remorse." The record does not support the trial court's determination that the...
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