DRAYTON EUGENE SCOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court vacated a three-year prison sentence for attempted sale of cocaine because the trial court's reasons for departing from sentencing guidelines were based solely on prior criminal record, which is already factored into the guidelines scoresheet.
A trial court cannot depart from sentencing guidelines based on reasons that are already incorporated into the guidelines scoresheet, such as prior criminal record.
[1] Sentencing guidelines departure cannot be justified by reasons already incorporated into the guidelines scoresheet, such as prior criminal record; clear and convincing re…
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Join FLexlaw to unlock all legal intelligenceDrayton Eugene Scott pleaded guilty to attempted sale or delivery of cocaine. He had a prior criminal record including armed robbery and grand theft f…
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ORFINGER, Judge.
In departing from the recommended guidelines sentence of any non-state prison sanction and sentencing defendant to a term of three years in prison for the crime of attempted sale or delivery of a controlled substance, the trial court articulated the following reasons:
The Defendant, DRAYTON EUGENE SCOTT, JR., pleaded guilty to the offense of attempted sale or delivery of a controlled substance, cocaine.' The Defendant has a prior criminal record of armed robbery and grand theft for which he was sentenced to the Department of Corrections. His record indicates that he cannot live within the framework of a free society without violating its laws.
It is inconceivable that a non-state prison sanction would be sufficient punishment in this instance; therefore, this Court finds and determines that it is necessary to go outside the guidelines and impose a sentence accordingly.
These reasons, all of which are based on defendant’s prior record, and are thus already factored into the guidelines score-sheet, are insufficient reasons for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). The sentence is therefore vacated and the cause is remanded to the trial court for resentencing in accordance with the guidelines, absent clear and convincing reasons for departure.
SENTENCE VACATED and REMANDED.
DAUKSCH and COWART, JJ., concur.
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Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987)…he guidelines are applicable. Accordingly, I would vacate this sentence and remand for resentencing consistent with the guidelines. . This was a three-cell departure upward from the presumptive sentence. . Fla.R.Cr.P. 3.701. . See Scott v. State, 482 So. 2d 607 (Fla. 5th DCA 1986), Clark v. State, 481 So. 2d 994 (Fla. 5th DCA 1986), Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985), Gale v. State, 483 So. 2d 53 (Fla. 1st DCA), review denied, 492 So. 2d 1332 (Fla.1986). . §§ 948.03, 948.01(3), Fla.Stat.…
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Holden v. State, 487 So. 2d 1199 (Fla. 5th DCA 1986)…tent to commit manslaughter. This conviction was included in the scoresheet calculation and thus was an improper reason for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Spells v. State, 482 So. 2d 608 (Fla. 5th DCA 1986); Scott v. State, 482 So. 2d 607 (Fla. 5th DCA 1986). The second time lethal force was used considers an essential element of the instant offense. This reason is also impermissible. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985), aff'd, 483 So. 2d 423 (Fla.1986); Fletcher v. S…
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Riggins v. State, 489 So. 2d 180 (Fla. 1st DCA 1986)…); Tillman v. State, 482 So. 2d 603 (Fla. 5th DCA 1986) (conclusion that defendant had no intention of abiding by the law or probation based solely on defendant’s extensive criminal record was not a permissible reason for departure); Scott v. State, 482 So. 2d 607 (Fla. 5th DCA 1986) (defendant’s prior criminal record of armed robbery indicating that he could not live within the framework of a free society without violating its law is invalid reason for departure); Fowler v. State, 482 So. 2d 602 (Fla. 5th DC…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)