Sarvis v. StateSarvis v. State
Appellant seeks review of his judgment and sentence entered October 7, 1983, on charges of sale or delivery of cannabis and
1. The trial court erred in proceeding with the trial while appellant was in absentia.
2. The triаl court improperly admitted evidence of a collateral crime.
3. The trial court erred in departing from the sentencing guidelines without clear and convincing reasons.
We affirm on points 1 and 2 and reverse on point 3.
On Mаrch 17, 1983, appellant was charged with the sale or delivery of cannabis, and trial was held May 26, 1983. At the outset of the trial, appellant moved for change of counsel on the ground that he was not sufficiently represented. The trial court denied the motion.
The evidence presented by the state showed that two undercover police officers drove up to the front of a cafe, rolled down their window, and were approached by appellant. They inquired if appellant was holding marijuana. After leaving the car momentarily, appellant returned with a manila envelope containing marijuana and sold it to the officers. Over appellant‘s objection, the state was allowed to introduсe evidence that during surveillance of appellant after the buy the officers noticed appellant, with a manila envelope in his hand, approach anothеr vehicle in the same manner he had approached their vehicle.
After the state rested, appellant‘s counsel indicated he had no witnesses to present at that time but that he needed to talk to potential witnesses that night. Court was adjourned until the following day. When court reconvened, defendant was not present and could not be located. The trial court permitted a continuance until that afternoon, but upon reconvening defendant was still not present. The trial court found that defendant had voluntarily absented himsеlf from court and had waived his right to be present during the remainder of the trial. When the court announced its intention to proceed, defense counsel objected because there was no evidence to explain defendant‘s absence. The objection was overruled. Defense counsel introduced no witnesses on behalf of appellant, and the jury found him guilty of the sale of cannabis.
A capias was issued for appellant‘s arrest, and an information was filed against him for bail bond jumping. Approximately four months later, he wаs arrested in California. He was returned to Florida and pled guilty to bail bond jumping. He elected to be sentenced under the sentencing guidelines for the cannabis and bail bond jumping offеnses, and the guidelines sentence was calculated as twelve to thirty months incarceration. The court adjudicated defendant guilty and, departing from the guidelines, sentenced him tо consecutive terms of five years for the sale of cannabis and thirty months for bail bond jumping.
We reject appellant‘s argument that the court erred in proceeding with his trial while he was not before the court. The Fifth Circuit‘s opinion in U.S. v. Benavides, 596 F.2d 137 (5th Cir.1979), relied on by appellant, is factually distinguishable. In Benavides, the defendant was absent for his entire trial, whereas in this case appellant was present during the first day of his trial, when the state presented all of its evidence. Accordingly, appellant was present to confront all witnesses against him. As indicated by the Florida Supreme Court in State v. Melendez, 244 So.2d 137 (Fla. 1971), “where a defendant absents himself during his trial, with knowledge that his trial is underway, his absence shall not be permitted to interrupt the proceedings.” Id. at 139.
As to appellant‘s second argument, we agree that the testimony regarding aрpellant‘s actions after he sold the marijuana to the officers was erroneously admitted. The testimony failed to establish commission of a collateral crime; rather, it merely impugned appellant‘s character and intimated criminal conduct without proof
Appellant‘s final argument is that the trial court failed to support its deviation from the sentencing guidelines by clear and convincing reasons, as required by
Appellant‘s guidelines sentencе for sale of cannabis and bail bond jumping was twelve to thirty months. See
The defendant absconded in the middle of his jury trial, fleeing from the state of Florida. He was apprehended in California some months later. He is contemptuous of the court system and defiant to all authority. He shows no remorse and laughs about his actions. The chances of his being rehabilitated in thirty months are nonexistent.
We hоld that none of the reasons cited by the court are sufficiently “clear and convincing” to justify departure from the guidelines.
The first reason stated by the court was that appellant absconded in the middle of his trial and was apprehended in California several months later. This is an improper reason for departure because appellant‘s aсtions formed the basis for his conviction of bail bond jumping and had already been factored into his presumptive guidelines sentence as an “additional offense at convictiоn.” It is improper for the court to deviate from the sentencing guidelines in reliance upon facts which have already been included within the determination of the guidelines sentence. Burch v. State, 462 So.2d 548 (Fla. 1st DCA 1985).
The second reason for departure stated by the trial judge is that defendant was “contemptuous of the court system and defiant to all authority.” The only record evidence which could possibly support this conclusion is the fact that the defendant jumped bail. As discussed previously, the bail bond jumping offense has already been factored into the guidelines sentence; accordingly, it cannot form the basis for departure from the guidelines.
The trial judge‘s third reason for departure, that appellant “shows no remorse and laughs about his actions,” is neither “clear and convincing” or supported by the record. The record clearly reflects that appellant, at his sentencing hearing, admitted jumping bail and apologized to the court for such action, but nevertheless maintained his innocence of sale or delivery of cannabis. A defendant is entitled to maintain his innocence even after a jury verdict of guilty. Appellant should not be punished simply because he did not admit to sale or delivery of cannabis. Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984).
The trial judge‘s final reason for deviation from the guidelinеs is that appellant‘s chances of being rehabilitated in thirty months are “nonexistent.” This conclusory statement “wholly fail[s] to relate to anything within the context of the case.” Alford v. State, 460 So.2d 1000 (Fla. 1st DCA 1984). The court makes no attempt to explain why the defendant could not be rehabilitated in thirty months. This reason for departure merely suggests the court‘s disagreement with the guidelines sentence and is not “clear and convincing.”
The sentence is VACATED and the case is REMANDED for resentencing.
SHIVERS, J., concurs.
THOMPSON, J., concurs in part and dissents in part.
THOMPSON, Judge, concurring in part and dissenting in part.
I concur with the majority that the trial court did not commit error in trying the defendant in absentia and did not improperly