Weems v. State, 84-219

Decision Date22 June 1984
Docket NumberNo. 84-219,84-219
PartiesIsaac WEEMS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Judge.

This case involves the review of a sentence imposed outside the recommended guidelines.

Appellant pled guilty to charges of burglary of a structure, battery on a law enforcement officer, and resisting arrest without violence. All of the crimes occurred on September 3, 1983. However, sentencing took place after October 1, 1983, and pursuant to section 921.001(4)(a), Florida Statutes (1983), appellant affirmatively elected to be sentenced under the guidelines. Appellant's recommended sentence under the guidelines was "any nonstate prison sanction." 1 The court, however, determined to depart from the guidelines and imposed concurrent two year sentences on the two felonies and a concurrent six month term for resisting arrest without violence.

On the guideline form, the court gave as reasons for the departure:

Had this man been scored under burglary, he would come under 12-30 months because of the previous burglaries which can be counted. This man has been to State Prison twice before for burglaries--it apparently taught him nothing. This is his 11th burglary, although we can only "count" two. It is apparent he cannot make it on probation since he violated his last probation & his last parole. See attached. 2

The court attached a record of appellant's prior offenses which included thirteen juvenile dispositions that were the equivalent of convictions had they been committed by an adult.

Appellant, who was twenty-seven years old at sentencing, argues that the court improperly relied upon his juvenile record to depart from the guidelines since Florida Rule of Criminal Procedure 3.701(d)(5)(c) excludes from the computation all prior juvenile dispositions more than three years old. In making this argument we believe that the appellant misconceives the theory of sentencing guidelines.

The purpose of sentencing guidelines is to promote more uniformity in sentencing without usurping judicial discretion. 3 While it was contemplated that most sentences would fall within the guidelines, it was also anticipated that from fifteen to twenty per cent of the sentencing decisions routinely would fall outside the recommended range. 4 To prevent an abuse of discretion, provision was made for an appellate review of the reasons given for departing from the guidelines. Fla.R.Crim.P. 3.701(d)(11).

The fact that appellant's juvenile record cannot be considered in calculating the applicable sentencing range does not mean that it cannot be considered by the court as a reason for departing from the guidelines. The only limitation on reasons for deviating from the guidelines is found in subsection (d)(11) which reads:

Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained. 5

There is nothing in rule 3.701 to suggest that matters excluded for purposes of guideline computation cannot be considered as reasons for departure from the guidelines.

The stated reasons provided an adequate basis for sentencing appellant above the recommended range.

AFFIRMED.

HOBSON, A.C.J., and CAMPBELL, J., concur.

1 This computation took into account two prior felonies and three prior misdemeanors.

2 The court's reference to scoring under burglary was prompted by the fact that while both the burglary and the battery of a law enforcement officer were...

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24 cases
  • Mischler v. State
    • United States
    • Florida District Court of Appeals
    • 17 October 1984
    ...2d DCA 1984); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).8 Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984); Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984). Contra Harvey v. State......
  • Holloman v. State, 85-259
    • United States
    • Florida District Court of Appeals
    • 26 December 1985
    ...158 (Fla.1985); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984); Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984), approved, 469 So.2d 128 (Fla.1985).4 See Jackson v. State, 478 So.2d 1054 (Fla.1985).5 See Albritton v. State, 476 So.2d 158 ...
  • Townsend v. State, 84-1147
    • United States
    • Florida District Court of Appeals
    • 9 November 1984
    ...as additional reason for departure even though it cannot be considered in calculating applicable sentencing range); Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984) (juvenile convictions not counted in guidelines are clear and convincing reasons for departing from the guidelines). Accord B......
  • Williams v. State, 85-1920
    • United States
    • Florida District Court of Appeals
    • 14 August 1986
    ...juvenile record, 4 and he was sentenced as a youthful offender for a crime involving the use of a deadly weapon. Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984), aff'd, 469 So.2d 128 (Fla.1985); Riddle v. State, 488 So.2d 903 (Fla. 5th DCA 1986); Nixon v. State, 494 So.2d 222 (Fla. 1st DC......
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