KEYVUS T. BRYANT, A/K/A KEVIS BRYANT, A/K/A KEYVUS BEASLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal affirmed Bryant's convictions for grand theft, escape, and cocaine possession, but reversed the sentencing portion and remanded for resentencing within the guidelines because the trial court improperly departed upward without adequate record support.
The trial court erred in departing from the guidelines for two reasons: (1) the juvenile offenses were not scorable as prior record and would not have altered the recommended sentence even if scored, so they could not support a departure; and (2) the psychological evaluation's conclusions regarding community sanctions and boot camp did not establish that the defendant could not respond favorably to the guidelines-recommended incarceration, since he had never been incarcerated as an adult before.
[1] A sentencing court may depart from recommended guidelines based upon a non-scorable juvenile record only if the record is "significant" and the departure does not exceed…
[2] A trial court's conclusion that a defendant has failed to be rehabilitated and respond to efforts at rehabilitation, as a basis for departing from sentencing guidelines,…
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Join FLexlaw to unlock all legal intelligence“A sentencing court may depart based upon a non-scorable juvenile record only if it is 'significant' as that term is defined in Puffinberger v. State, 581 So.2d 897 (Fla.1991). Specifically, the departure cannot exceed the sentence that would have been allowed had the offenses actually been scored as 'prior record.'”
Establishes the legal standard for using juvenile offenses in sentencing departures
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBryant was convicted of grand theft, escape, and possession of cocaine. At sentencing, the trial court departed from the guidelines-recommended maximu…
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PER CURIAM.
We affirm appellant’s convictions for grand theft, escape, and possession of cocaine. However, we find that the trial court erred in exceeding the sentence recommended under sentencing guidelines, and we remand for resentencing.
The trial court provided two reasons for departing from the guidelines. Neither is supported by the record. First, the court cited “prior unseored charges.” This appears to be a reference to three offenses committed while appellant was a juvenile, and which did not qualify as “prior record” under Florida Rule of Criminal Procedure 3.701(d)(5)(G).
A sentencing court may depart based upon a non-scorable juvenile record only if it is “significant” as that term is defined in Puffinberger v. State, 581 So. 2d 897 (Fla.1991). Specifically, the departure cannot exceed the sentence that would have been allowed had the offenses actually been scored as “prior record.” In the present case, scoring appellant’s juvenile offenses would not have altered the recommended sentence. Under Puffinberger, therefore, those offenses would not authorize a departure sentence.
Second, the trial court cited appellant’s “failure to be rehabilitated and to respond to efforts at rehabilitation.” See Livingston v. State, 565 So. 2d 1288 (Fla.1990). Appellant admits this is a valid criterion if supported by the record, but denies that the record supports the trial court’s conclusion. The trial court appears to have relied primarily upon a court-ordered psychological evaluation in which appellant candidly admitted “he would not be able to successfully complete any period of community sanctions” or the “physically rigorous protocol” of a “boot camp” institution. The psychologist concluded that appellant “is not likely to respond successfully to anything less than incarceration at this time.”
Insofar as the recommended maximum sentence (permitted range) was five and one-half years, the guidelines mirror the psychologist’s pessimism. However, the report did not conclude that appellant, who has never before been incarcerated as an adult, would not respond favorably to such confinement. As stated by counsel for appellant, “Only after the person has actually served time in an adult prison can it be said that such sanction has failed to rehabilitate.” Cf. Burch v. State, 462 So. 2d 548, 548-9 (Fla. 1st DCA), approved, 476 So. 2d 663 (Fla.1985) (trial court’s concern that defendant needed the sort of rehabilitation provided by a penal facility “could have been assuaged without a resort to deviation from the recommended sentence”).
Reversed and remanded for sentencing within the guidelines.
FRANK, C.J., and DANAHY and PARKER, JJ., concur.
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McCOY v. State, 876 So. 2d 1243 (Fla. 3d DCA 2004)…entence for armed robbery and related offenses, none have merit. The only one which warrants discussion arises from the undisputed fact that the guidelines scoresheet erroneously included points for prior juvenile adjudications. See Bryant v. State, 626 So. 2d 1062 (Fla. 2d DCA 1993). We do not require a new sentencing on this ground, however, because it is clear that the trial judge would have imposed the same sentence, which was well below the maximum permitted by both the correct and the incorrect scores,…
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Adamo v. State, 786 So. 2d 1231 (Fla. 2d DCA 2001)…The trial court imposed an upward departure sentence based on unscored and contested juvenile offenses. The State has conceded error and has agreed that Adamo is entitled to be resentenced within the 1994 sentencing guidelines. See Bryant v. State, 626 So. 2d 1062, 1063 (Fla. 2d DCA 1993). We reverse and remand for the trial court to [*1232] resentence Adamo within the 1994 guidelines. Reversed and remanded. STRINGER and DAVIS, JJ., Concur.…
Authorities Cited
- Livingston v. State, 565 So. 2d 1288 (Fla. 1988)
- Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985)
- Puffinberger v. State, 581 So. 2d 897 (Fla. 1991)
- State v. Burch, 476 So. 2d 663 (Fla. 1985)