State v. Taylor, 85-1074
| Decision Date | 06 February 1986 |
| Docket Number | No. 85-1074,85-1074 |
| Citation | 11 Fla. L. Weekly 353,482 So.2d 578 |
| Parties | 11 Fla. L. Weekly 353 STATE of Florida, Appellant, v. Richard TAYLOR, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellant.
James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellee.
The State appeals a downward departure sentence following defendant's plea of nolo contendere to a charge of sexual battery of his 13 year old daughter. We agree that no clear and convincing reasons were given for departure, and vacate the sentence.
We will not detail the sordid events which ultimately led to this prosecution. What we have said above about the nature of the crime sufficiently describes it for the purposes of this opinion. The recommended guideline sentence was 30 months to 3 1/2 years' imprisonment, but the trial judge departed and sentenced defendant to 51 weeks in the county jail to be followed by 5 years' probation. The written reasons for departure given were:
1. The defendant had no prior offenses.
2. The defendant cooperated with all court orders, appearances and therapy.
3. The defendant had a stable environment.
4. To follow the guidelines would sever defendant's ties with the community.
5. To follow the guidelines would make it difficult for the defendant to regain employment with his limited education.
The first ground is not a proper basis for departure because a defendant's prior record (or lack of one) is already factored into the guideline calculation. Hendrix v. State, 475 So.2d 1218 (Fla.1985). The second ground, cooperation and compliance with court orders, does not justify a reward because a defendant is required to comply and his failure to appear when required could be a crime. Cooperation is not a basis for departure. State v. Collins, 482 So.2d 388 (Fla. 5th DCA 1985), rehearing granted, (Fla. 5th DCA Jan. 30, 1986). Thus, this reason too, like the first reason refers to his "good record" which is not a reason for departure. See also State v. Bentley, 475 So.2d 255 (Fla. 5th DCA 1985).
In addition to the failure of the third reason to be a clear and convincing reason for departure, it is obviously not supported by the record. Any person who sexually abuses his 13 year old daughter obviously lacks stability in his environment. The fourth reason cited for departure is also not clear and convincing, as it has...
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...Middleton v. State, 489 So.2d 201 (Fla. 2d DCA 1986); and McCray v. State, 488 So.2d 912 (Fla. 2d DCA 1986). But see State v. Taylor, 482 So.2d 578 (Fla. 5th DCA 1986); State v. Holcomb, 481 So.2d 1263 (Fla. 3d DCA 1986); State v. Caride, 473 So.2d 1362 (Fla. 3d DCA 1985). See also State v.......
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State v. Johns, 90-51
...equality in sentencing, trial judges must be blind as to the color of a defendant's collar. 553 So.2d at 780. See also State v. Taylor, 482 So.2d 578 (Fla. 5th DCA 1986) (fact that guidelines recommended sentence would make it difficult for the defendant to regain employment was not a valid......
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Byrd v. State, 87-1266
...not a valid reason for departure because that factor is already taken into consideration in the guideline calculation. State v. Taylor, 482 So.2d 578 (Fla. 5th DCA 1986). The second reason is that the state troopers who investigated this incident would not recommend prison. This is not a va......
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State v. Williams, 86-3056
...reduce sentence); Gibson v. State, 489 So.2d 836 (Fla. 3d DCA 1986) (lack of remorse an invalid ground for departure); State v. Taylor, 482 So.2d 578 (Fla. 5th DCA 1986) (cooperation is not a basis for departure). Furthermore, in Williams v. State, 500 So.2d 501 (Fla.1986), the supreme cour......