Falzone v. StateFalzone v. State
Appellant was convicted of grand theft.
The court departed upward from the guidelines and sentenced appellant to four years’ imprisonment followed by eleven years’ probation. The court‘s written reasons for departure were as follows:
1. The defendant was placed on probation on July 1, 1985, for the offense of keeping a gambling house. The unlawful conduct giving rise to that charge occurred in April, 1984, and the defendant was arrested on February 8, 1985. Accordingly, he had been arrested on that charge before he committed the grand theft for which he is now being sentenced. The prior felony (keeping a gambling house) is in no way considered by his scoresheet, but his prior unlawful conduct which was illegal activity calculated to obtain a pecuniary benefit is
something that should be considered in pronouncing sentence on the grand theft. 2. The theft of over $47,000.00 by a defendant who had been arrested for and later was placed on probation for the third degree felony of keeping a gambling house demonstrates repeat criminal activity within about thirteen months in financially motivated scenarios justifying sentence to the Department of Corrections, coupled with long term probation to permit restitution.
In order to determine the legality of the departure, it is necessary to consider the time sequence of appellant‘s crimes:
| April 1984 | Commission of keeping a gambling house |
| May 29, 1985 | Commission of grand theft |
| July 1, 1985 | Adjudication withheld and probation imposed for keeping a gambling house |
| October and November 1985 | Conviction and sentencing for grand theft |
A prior crime which has already been factored into the guidelines cannot be a valid basis for departure. Hendrix v. State, 475 So.2d 1218 (Fla. 1985). On the other hand, the conviction of a crime which is not eligible for guidelines computation may justify an upward departure. Prince v. State, 461 So.2d 1015 (Fla. 4th DCA 1984). Here, in departing, the court relied upon appellant‘s offense of keeping a gambling house which occurred prior to the subject theft but for which he was not convicted until after the theft had taken place.
In Frank v. State, 490 So.2d 190 (Fla. 2d DCA 1986), our court construed
“Prior record” refers to any past criminal conduct on the part of the offender, resulting in conviction, disposed of prior to the commission of the primary offense.
and that Frank was wrongly decided because it presupposed that the words “disposed of” were no longer part of the rule.
Admittedly, Frank was decided on the premise that the words “disposed of” had been eliminated from the rule because the supreme court had amended the rule to this effect, subject to the approval of the Florida Legislature, effective July 1, 1985. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 468 So.2d 220 (Fla. 1985). However, the legislature did not act on the rule in 1985. Thereafter, on December 19, 1985, the supreme court passed a similar amendment, subject to approval of the legislature, to be effective on July 1, 1986. The legislature did approve the rule in the 1986 session, so there is no doubt that the text of the rule as considered in Frank is applicable to sentencing subsequent to July 1, 1986.
Notwithstanding the proposition that the words “disposed of” may still have been a part of the rule when both Frank and appellant were sentenced, we cannot accept the state‘s proposition. In its opinion amending the rule on April 11, 1985, the supreme court stated in a footnote:
b) Rule 3.701(d)(5)(a) is revised by the elimination of the words “disposed of.” These words are not susceptible of definition within the context of the rule and have generated confusion. The elimination of this wording does not alter the intent of this section.
468 So.2d at 221. While the words “disposed of” seem more likely to refer to a conviction than the commission of an offense, when these words were read in the context of the prior rule, they made little sense. Because the supreme court has stated that the rule as it now exists means the same as it did when the words “disposed
Accordingly, the prior felony of keeping a gambling house should have been factored into the sentencing guidelines and could not be considered as a reason for departure. We affirm appellant‘s conviction but reverse the sentence and remand for resentencing.
DANAHY, C.J., and CAMPBELL, J., concur.