BARRY DEPAUL, A/K/A BARRY PERKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Barry DePaul appealed his five-year sentence imposed after revocation of community control, arguing the trial court erred in departing upward from the presumptive guidelines sentence of twelve to thirty months. The Second District Court of Appeal affirmed, holding that repeated violations of probation and community control, combined with resistance to rehabilitation, justified the departure.
The trial court properly departed from the guidelines. Repeated violations of probation alone are sufficient to support a departure sentence, and reasons relating to a defendant's resistance to rehabilitation may justify departure from the guidelines.
[1] A defendant's repeated violations of probation and community control may constitute a clear and convincing reason to depart from the presumptive sentencing guidelines.
[2] A defendant's demonstrated unwillingness to accept supervision and resistance to rehabilitation can justify a departure from sentencing guidelines.
Previewing 2 of 3 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“repeated violations of probation alone are sufficient to support a departure sentence”
Establishes the legal standard allowing courts to depart from guidelines based on multiple probation violations
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Join FLexlaw to unlock all legal intelligenceDePaul pled guilty to burglary in February 1984 and was placed on five-year probation. He violated probation in October 1984 (continued on probation) …
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PER CURIAM.
Barry DePaul appeals the sentence imposed upon him following revocation of community control contending that the court erred in departing from the presumptive guidelines sentence. We affirm.
Appellant pled guilty on February 23, 1984, to a charge of burglary and was placed on probation for five years. On October 31, 1984, appellant was charged with violating the terms of his probation, but the court continued him on probation. Again, on June 11, 1985, appellant was charged with violating probation, and the court placed him on two years’ community control. A little more than a month later, appellant violated the conditions of his community control. Upon revocation of community control, the trial court departed from the presumptive guidelines sentence of twelve to thirty months’ incarceration and sentenced appellant to five years’ incarceration. In its written reasons for departure, the trial court stated that, in spite of numerous opportunities, appellant failed to rehabilitate himself while on probation and concluded that “his actions showed a complete disregard for authority and a total unwillingness to accept supervision.”
On appeal, appellant concedes that previous violations of probation may be a clear and convincing reason to depart from the sentencing guidelines, Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985); however, he argues that Booker requires a showing that the defendant has demonstrated a pattern of escalating criminal involvement. He claims that since the revocation of his probation and community control were the result of noncriminal acts the trial court had no basis for departure and, therefore, under Florida Rule of Criminal Procedure 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 control, we find that the trial court was justified in departing from the guidelines.
Accordingly, we affirm appellant’s judgment and sentence.
LEHAN, A.C.J., and HALL and SANDERLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985)
- Cassell v. State, 489 So. 2d 752 (Fla. 2d DCA 1986)