Mackey v. State, 495 So. 2d 916

Mackey v. State

495 So. 2d 916 | Fla. Dist. Ct. App. | 1986

Concurrence Opinion

GLICKSTEIN, Judge,

concurring specialty-

I concur in the result, but would say that some of what the trial court wrote adequately translates stated circumstances into valid reasons for departure. Albeit more explicitly stated reasons could save bench and bar a great amount of time, I appreciate that trial courts often must work hurriedly because of a huge workload.

*918It is not necessary to perceive the stated reasons for departure as four in number, as appellant asserts. If, rather, we regard the writing as merely “stream of consciousness,” it is not farfetched to accept as adequate and valid the first part of the stated reasons. It may be read as saying the departure was occasioned by appellant’s malice and complete disregard for the law, which were evidenced by his cunningly premeditated substantive offenses, namely armed sexual battery, armed kidnapping, armed robbery and burglary of a dwelling. It seems clear the word “substantive” was used to characterize appellant’s crimes in contradistinction to more formal probation violations, such as neglecting to report to one’s probation officer as required. Read this way, the statement shows how the circumstances of the probation revocation also justify a sentencing departure.

I agree, however, that the phrase “protection of society” is at best vague, and that “complete disregard for ... probation conditions” presents an invalid reason for departure. Unable to determine that the departure was unaffected by the invalid reason or reasons, we must reverse and remand for the purposes set forth by the majority. See Albritton v. State, 476 So.2d 158 (Fla.1985).

Lead Opinion

HERSEY, Chief Judge.

The day after appellant was released on probation after serving a prison term for various convictions of theft, he committed the offenses at issue here, i.e., sexual battery, kidnapping, robbery and burglary. Appellant’s trial was interrupted by a declaration of mistrial; however, the trial court continued to take evidence on the charge of violation of probation, as a result of which appellant’s probation was revoked.

The sentencing guidelines scoresheet provided for a presumptive sentence of any non-state prison sanction. Departing from the guidelines, the court sentenced appellant to one year for fraudulent use of a credit card, one year for grand theft, and five years for theft of a credit card, all sentences to run consecutively. The total sentence represented a six cell departure from the presumptive sentence.

Violation of probation is a sufficient basis for upward departure to the next higher cell without requiring a written statement of reasons. Fla.R.Crim.P. 3.701d.l4. Departure greater than a one cell increase is also permissible, but must be supported by reasons other than the fact of violation of probation. Rodriguez v. State, 464 So.2d 638 (Fla. 3d DCA 1985). See also Spivey v. State, 481 So.2d 100 (Fla. 3d DCA 1986); Proctor v. State, 480 So.2d 160 (Fla. 1st DCA 1985); Monti v. State, 480 So.2d 223 (Fla. 5th DCA 1985).

The court gave the following as “reasons for departure” in sentencing Mackey:

The violations were substantive: i.e., armed sexual battery; armed kidnapping; armed robbery; and burglary (dwelling) — the offenses were cunningly pre-meditated and evidenced malice and complete disregard for the law and probation conditions — protection of society.

While the record may support a departure of more than one cell, the stated reasons are not sufficiently specific to do so. The term “substantive” used in this context is at least ambiguous, and the remainder of the statement is simply too vague to permit analysis of specific bases for departure.

While circumstances forming the basis for revocation of probation may constitute valid reasons for departure, Rodriguez, 464 So.2d at 638, 639, those circumstances must be translated by the trial court into a written statement containing reasons that are supportive of departure. A reason, such as “no pretense of moral or legal justification for the offense,” which has been rejected as a valid basis for departure in another context (see Burch v. State, 462 So.2d 548 (Fla. 1st DCA), affirmed, 476 So.2d 663 (Fla.1985)), is equally objectionable as a reason for departure in the violation of probation context.

We reverse the sentence and remand for resentencing to permit the trial court either to make a more explicit statement of reasons to justify the original departure sentence or to resentence the appellant with no more than a one cell upward departure from the presumptive guidelines sentence.

REVERSED AND REMANDED.

WALDEN, J., concurs. GLICKSTEIN, J., concurs specially with opinion.