MACK MADISON PHILLIPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed a 15-year sentence for aggravated battery despite the trial court's reliance on lack of remorse as an improper departure reason, finding the remaining valid reasons supported the sentence beyond a reasonable doubt.
Lack of remorse is an improper reason for departure from sentencing guidelines, but a sentence may be affirmed if other valid reasons support it beyond a reasonable doubt.
[1] Lack of remorse is an improper basis for departure from sentencing guidelines, but a sentence may be affirmed if other valid reasons support it beyond a reasonable doubt.
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to aggravated battery and was sentenced to 15 years incarceration, departing from the recommended guidelines range of 12 to 3…
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WIGGINTON, Judge.
Appellant entered a plea of guilty to the charge of aggravated battery. At sentencing, the trial court departed from the recommended guidelines range of twelve to thirty months’ incarceration or community control and sentenced appellant to fifteen years’ incarceration. As its third reason for departure, the trial court set forth that appellant “has shown to this Court no remorse and has not accurately reported or indicated his part in the involvement.” We have held that “lack of remorse” is an improper reason for departure. Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984). Despite that one invalid reason, however, we affirm. Although the State did not have the benefit of the supreme court’s decision in Albritton v. State, 476 So. 2d 158 (Fla.1985), and therefore did not attempt to show beyond a reasonable doubt that the absence of the invalid reason would not have affected the departure sentence, this Court’s review of the remaining two valid reasons in light of the record and the arguments made have persuaded us beyond a reasonable doubt that the trial court would have sentenced appellant in the same manner without the benefit of the invalid reason relied upon. Ross v. State, 478 So. 2d 480 (Fla. 1st DCA 1985).
AFFIRMED.
ERVIN, J., and McCORD, GUYTE P., Jr. (Ret.), Associate Judge, concur.
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Citator
Cited By
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Everage v. State, 504 So. 2d 1255 (Fla. 1st DCA 1986)…at appellant gave untruthful testimony. Secondly, again since the advent of sentencing guidelines, it has been held that a defendant’s lack of remorse may not be relied upon by the trial court as a reason for guidelines departure. Phillips v. State, 481 So. 2d 996 (Fla. 1st DCA 1986) Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985); Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986). The final reason for departure given by the trial judge, namely, that the appellant “poses a danger to himself and to othe…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984)
- Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985)
- Ross v. State, 478 So. 2d 480 (Fla. 1st DCA 1985)