LEROY FISHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fisher appeals three consecutive five-year sentences imposed upon revocation of his probation for grand theft convictions. The court erred by departing from the sentencing guidelines without proper justification, as the stated reasons were either based on scored prior history without analysis, a bare belief that the defendant lied, or an arrest without conviction.
The court erred in departing from the guidelines. The stated reasons for departure—that Fisher was a career thief, committed the same offense while on probation, and lied to the court—were improper under Rule 3.701 because they were based on scored prior history without further analysis, a bare belief that defendant lied, and an arrest without conviction, respectively.
[1] A court may not depart from recommended sentencing guidelines based solely on a defendant's status as a "career thief" without further analysis or stated reason.
[2] A court may not depart from recommended sentencing guidelines based on a belief that a defendant lied before the court.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Insofar as appellant's status as a "career thief" was based solely upon a scored prior history without further analysis or stated reason, this circumstance may not serve as a predicate for departing from the recommended guidelines sentence.”
Establishes that scored prior history alone, without further analysis, cannot justify departure from sentencing guidelines
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1984, Fisher entered guilty pleas to three grand theft charges and was placed on probation with restitution requirements. In 1985, he was arrested …
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WENTWORTH, Judge.
Appellant seeks review of three sentences to consecutive five year terms of imprisonment imposed after revocation of probation for three counts of grand theft. We find that the court erred by improperly departing from the recommended sentence established pursuant to the Fla.R.Crim.P. 3.701 guidelines. We therefore vacate appellant’s sentences and remand the cause for resentencing.
Appellant entered negotiated guilty pleas and was placed on probation for three grand theft charges in 1984, agreeing to make restitution. In 1985 appellant was arrested for a new grand theft offense. A hearing was held and appellant was found to have violated his probation upon being arrested and by failing to make the agreed restitution. Appellant was sentenced pursuant to the Rule 3.701 sentencing guidelines, but the terms of imprisonment imposed are in excess of the guidelines’ recommended range. The court specified as its written reasons for departure1 that:
This Defendant is a career thief. He committed the same offense while on probation. He has demonstrated he is a flimflam artist and has lied before the court.
Insofar as appellant’s status as a “career thief” was based solely upon a scored prior history without further analysis or stated reason, this circumstance may not serve as a predicate for departing from the recommended guidelines sentence. See McBride v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985). Nor may a bare belief that a defendant lied before the court serve as a basis for departure. See e.g., McBride, supra. Although departure will sometimes be appropriate for the repeated commission of similar offenses, see Jean v. State, 455 So. 2d 1083 (Fla.2d DCA 1984), Fla.R. Crim.P. 3.701(d)(ll) prohibits departures predicated on “factors relating to prior arrests without conviction.” Rule 3.701(d)(2) defines conviction as “a determination of guilt resulting from plea or trial....” At the time of sentencing in the present case appellant had merely been arrested, but not convicted, of another offense. In accordance with Rule 3.701(d)(ll) a departure from the recommended guidelines sentence thus may not be predicated upon the conclusion that appellant “committed the same offense while on probation.”
Accordingly, appellant’s sentences are vacated and the cause remanded for resentencing.
MILLS and NIMMONS, JJ., concur. . Fla.R.Crim.P. 3.701(d)(14) provides that a sentence imposed after revocation of probation may be increased to the next higher recommended range without a specified reason for departure. In the present case the court exceeded the next higher recommended range. Such a departure is permissible upon a written specification of reasons which may include circumstances of a probation violation which are sufficiently egregious. See Pentaude v. State, 478 So. 2d 1147 (Fla. 1st DCA 1985).
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Paschall v. State, 501 So. 2d 1370 (Fla. 2d DCA 1987)…arrested and released on bond, but had not been convicted for another offense. Accordingly, the court found this reason infirm because it was predicated on “factors relating to prior arrests without conviction.” Id. at 1147 (citing Fisher v. State, 489 So. 2d 857 (Fla. 1st DCA 1986)). In the present case, appellant was convicted for the offense for which he was out on bond, along with the offenses that he committed while out on bond. We note the fact that appellant was “out on bond” is not calculated into ap…
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Nivaldo Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986)…tence based on the fact that Echevarria was out on bond at the time the offense was committed. Florida Rule of Criminal Procedure 3.701(d)(ll) prohibits departure predicated on “factors relating to prior arrests without conviction.” Fisher v. State, 489 So. 2d 857 (Fla. 1st DCA 1986). At the time of sentencing, Echevarria had been arrested and released on bond, but had not been convicted for another offense. Third, the trial court erred in finding an escalating pattern of offensive conduct. Although under ce…
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Campbell v. State, 558 So. 2d 34 (Fla. 1st DCA 1989)…8-499 (Fla. 1st DCA 1988), this court noted “[t]hat a defendant has committed an offense while out on bond for a similar offense on which the defendant was not convicted has been held to be an invalid reason for departure.” See also Fisher v. State, 489 So. 2d 857, 858 (Fla. 1st DCA), review denied, 500 So. 2d 545 (Fla.1986); McIntyre v. State, 539 So. 2d 603 (Fla. 3d DCA 1989); Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988); Paschall v. State, 501 So. 2d 1370, 1372 (Fla. 2d DCA 1987); Echevarria v. Stat…
Authorities Cited
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- Miranda v. Hance Constr. Co., 478 So. 2d 1147 (Fla. 1st DCA 1985)
- Alphonse McBRIDE v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985)