ALTON RAY THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas appeals his 48-month concurrent sentences for burglary and grand theft, arguing the trial court's reasons for departing upward from the sentencing guidelines were not clear and convincing. The appellate court agreed, vacated the sentences, and remanded for resentencing within the guidelines.
The trial court abused its discretion by departing from the sentencing guidelines because none of the reasons given by the court clearly and convincingly justified a more severe sentence than recommended by the guidelines. Although the reasons themselves were not facially impermissible, they did not meet the clear and convincing standard given the facts.
[1] A trial court's reasons for departing from sentencing guidelines must be clear and convincing.
[2] A defendant's attitude, the victim's relationship to the defendant, the time of the offense, the value of stolen items, and the manner of the offense can be grounds for d…
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Join FLexlaw to unlock all legal intelligence“Although none of the reasons for departure reflects facially impermissible considerations, neither are any of the reasons clear and convincing given the facts of the case before us.”
Establishes that appellate review requires clear and convincing justification for departure, not mere permissible reasoning
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Join FLexlaw to unlock all legal intelligenceThomas pleaded guilty to burglary of a dwelling and grand theft occurring on August 30, 1983. He broke into the home of Mr. and Mrs. Amos in Jacksonvi…
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MILLS, Judge.
Thomas appeals from two concurrent sentences of 48 months in prison. He contends the reasons given by the trial court for departing from the sentencing guidelines are not clear and convincing. We agree, vacate the sentences, and remand for resentencing within the guidelines.
Thomas was charged with burglary of a dwelling and grand theft, the crimes occurring on 30 August 1983. He pleaded guilty to both charges and affirmatively selected guidelines sentencing. At the sentencing hearing, Thomas admitted breaking into Mr. and Mrs. Amos’ house in Jacksonville on the night of 30 August 1983, and stealing some coins. He denied being in the house when Mrs. Amos returned home, however. Mrs. Amos testified she returned home around 9:00 p.m. on 30 August 1983. She heard a noise. Later, as she was preparing to go to bed, she noticed her bedspread had been pulled underneath the bed. Believing someone was hiding under the bed, she ran out of the house. Mrs. Amos testified some jewelry and her husband’s coin collection were stolen. Mr. Amos testified his coin collection was stolen.
The recommended range under the guidelines was 12 to 30 months incarceration. The trial court instead imposed two concurrent 48-month sentences. Defense counsel did not object to this departure after the sentence was pronounced.
The written reasons given by the trial court for departing from the guidelines are:
1) The defendant’s attitude as reflected in the attached Presentence Investigation indicates the defendant felt he could make a better living by stealing than by working.
2) The victims in this case were friends of the defendant.
3) The breaking into the dwelling was at night.
4) The items stolen belonged to an invaluable coin collection.
5) The defendant, during the course of the Burglary, concealed himself under the bed and fled after the victim had entered her home thereby terrorizing the citizen.
The State contends the question of whether the reasons for departure are clear and convincing is not preserved for review because Thomas did not object to departure at sentencing. This contention is without merit because this issue is appealable as a matter of right. Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984).
Although none of the reasons for departure reflects facially impermissible considerations, neither are any of the reasons clear and convincing given the facts of the case before us. The record reflects a burglary and theft which, vile as they may be, were perpetrated in a quite common manner. We are mindful that sentencing remains largely discretionary, and that the scope of our review is limited to a determination of whether the trial court abused its discretion. Garcia v. State, 454 So. 2d 714 (Fla. 1st DCA 1984); Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984). But where, as here, none of the reasons given by the trial court clearly and convincingly shows why the defendant should receive a more severe sentence than that recommended by the guidelines, we must conclude the trial court erred in departing from the sentencing guidelines.
The sentences are vacated, and the case remanded for resentencing within the guidelines.
SHIVERS and WENTWORTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bradley v. State, 468 So. 2d 378 (Fla. 1st DCA 1985)…ot make a contemporaneous objection to departure. A defendant may appeal from a sentence outside the recommended range whether or not he makes a contemporaneous objection. Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984). As in Thomas v. State, 461 So. 2d 234 (Fla. 1st DCA 1984), and Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984), we adhere to Mitchell. Because of two errors in the sentencing process which, together, require resentencing, we do not, however, find it necessary to evaluate the trial c…
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Holden v. State, 487 So. 2d 1199 (Fla. 5th DCA 1986)…D for re-sentencing. COBB, C.J., and SHARP, J., concur. . It should be noted that even though a crime is repugnant, there can be no departure based on the surrounding circumstances when the crime is perpetrated in a common manner. Thomas v. State, 461 So. 2d 234 (Fla. 1st DCA 1984). This is not a case where the departure was based on “the circumstances of the way the crime was committed indicating excessive brutality and clear premeditation” which may be considered under Lerma v. State, 476 So. 2d 275 (Fla.…
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McGOUIRK v. State, 470 So. 2d 31 (Fla. 1st DCA 1985)…ffirm. First of all, we reject the State’s contention that McGouirk did not properly preserve the guidelines issue for appeal by contemporaneously objecting to his sentence. See Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); Thomas v. State, 461 So. 2d 234 (Fla. 1st DCA 1984). We further find that the reason expressed by the court for its departure, that the crime was “grotesque,” showing “utter disregard for human [life],” is clear and convincing. See Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Onelia Garcia and Matthew Lee Wilson v. State, 454 So. 2d 714 (Fla. 1st DCA 1984)
- Glynn Addison, Jr. v. State, 452 So. 2d 955 (Fla. 2d DCA 1984)
- Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984)