CHARLES M. CASSELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that when a departure sentence is based on both valid and invalid reasons, the case must be remanded for resentencing.
Appellant was convicted of burglary and grand theft. The trial judge departed from the presumptive guidelines sentence, imposing a longer sentence bas…
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HALL, Judge.
Charles Cassell appeals his conviction for burglary and grand theft. Appellant raises two points on appeal. We find no merit to the first point on appeal, but agree that the trial court erred in sentencing appellant.
After a jury found appellant guilty of both offenses, the trial judge departed from the presumptive guidelines range of three years and sentenced appellant to five years’ imprisonment on each offense, to run concurrently.
Appellant contends that the reasons used for departure are invalid and do not justify a departure from the recommended guidelines sentence.
Several of the reasons listed are not clear and convincing reasons. However, reasons which relate to appellant’s resistance to rehabilitation may justify a departure. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985); McCoy v. State, 482 So. 2d 566 (Fla. 2d DCA 1986).
In the event an appellate court cannot determine beyond a reasonable doubt that the trial court would have departed regardless of the invalid reasons, the case must be remanded for resentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985); State v. Young, 476 So. 2d 161 (Fla.1985).
Since the departure is grounded on permissible and impermissible reasons, we reverse appellant’s sentence and remand for resentencing.
We affirm the conviction in all other respects.
RYDER, C.J., and FRANK, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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DePAUL v. State, 505 So. 2d 659 (Fla. 2d DCA 1987)…dure 3.701(d)(14), only a one-cell increase is permissible following revocation of community control. We disagree. This court has held that reasons which relate to a defendant’s resistance to rehabilitation may justify departure. Cassell v. State, 489 So. 2d 752 (Fla. 2d DCA 1986). We have also held that repeated violations of probation alone are sufficient to support a departure sentence. Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985). Since appellant continuously violated probation and community contro…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Young, 476 So. 2d 161 (Fla. 1985)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- McCOY v. State, 482 So. 2d 566 (Fla. 2d DCA 1986)