Stubbs v. State, BT-234
| Decision Date | 11 March 1988 |
| Docket Number | No. BT-234,BT-234 |
| Parties | 13 Fla. L. Weekly 654 Johnnie B. STUBBS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Marie Ines Suber, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
The appellant was convicted of possession of cocaine and sentenced to a term of two years incarceration, 1 an upward departure from the sentence called for in the sentencing guidelines scoresheet. He contends that the trial court erred in denying his motion to suppress and in departing from the guidelines sentence. We affirm the order denying suppression without further discussion. But we reverse the sentence and remand for resentencing.
The trial court gave the following reasons for departure:
1. Defendant has been incarcerated on at least 3 prior occasions for drug related offenses, and was released from prison less than 1 year when these offenses were committed. Prior periods of incarceration did not deter him from committing the same offense again. (See Jean v. State, 455 So.2d 1083 (Fla. 2nd DCA 1984)).
2. Evidence at the trial demonstrated that the Defendant intends to use marijuana on a regular basis, without any excuse, except that he feels he has a "heart condition" which is improved by the use of marijuana. To place a defendant on probation who intends to continue using an illegal drug would be an exercise in futility and violate the required findings for placing a defendant on probation.
In Williams v. State, 504 So.2d 392 (Fla.1987), the Supreme Court stated:
Neither the continuing and persistent pattern of criminal activity nor the timing of each offense in relation to prior offenses and release from incarceration or supervision are aspects of a defendant's prior criminal history which are factored in to arrive at a presumptive guidelines sentence. Therefore, there is no prohibition against basing a departure sentence on such factors.
Id. at 393. We believe that the reasons articulated by the trial judge in paragraph number one above fall within the category described above in Williams. 2
However, the reasons set forth in paragraph number two are not clear and convincing. In the first place, there is no evidence in the record supporting the factual premise stated in the first sentence. In addition, the second sentence erroneously assumes that the guidelines scoresheet places the defendant in a cell which precludes incarceration. This is not so inasmuch as the...
To continue reading
Request your trial
-
Williams v. State, 87-1599
...recent release from prison is a valid reason for departure. See Larry v. State, 527 So.2d 883 (Fla. 1st DCA 1988); Stubbs v. State, 522 So.2d 444 (Fla. 1st DCA 1988). In this case, appellant had been released from incarceration less than seven months before commission of the instant offense......
-
Robinson v. State, 87-0562
...Also cf. Jones v. State, 517 So.2d 121 (Fla. 4th DCA 1987); Larry v. State, 527 So.2d 883 (Fla. 1st DCA 1988); Stubbs v. State, 522 So.2d 444 (Fla. 1st DCA 1988). We recognize that an earlier opinion of this court, Abt v. State, 504 So.2d 548 (Fla. 4th DCA 1987), stated that the failure to ......
-
Rodrique v. State, 88-754
...the timing of the crime in relation to prior offenses and release from incarceration or supervision (paragraph 4). See Stubbs v. State, 522 So.2d 444 (Fla. 1st DCA 1988); Williams v. State, 504 So.2d 392 (Fla.1987). The remaining reasons given are invalid because either the facts supporting......
-
Larry v. State, s. 87-320
...on parole 6 years later. Within 14 months after his release from prison, defendant committed the instant offenses. In Stubbs v. State, 522 So.2d 444 (Fla. 1st DCA 1988), this court held that Stubbs' release from prison less than one year prior to commission of the instant offense constitute......