Simmons v. StateSimmons v. State
Appellant contends that the trial court erred in relying on invalid reasons, and in sentencing him beyond the next higher cell of the guidelines, when sentеncing appellant for a term of years outside the guidelines.
Appellant had been cоnvicted in 1982, of possession of more than 20 grams of cannabis, and placed on probatiоn for five years. In 1984, while still on probation, appellant was charged with selling one-half gram of сocaine to an FDLE special agent on March 14, 1984. He was also charged with possession and sale of 28.1 grams of cocaine on March 29, 1984. As the result of plea bargaining appеllant pled guilty to the second charge and to possession (related to the first charge).
Appellant admitted to a violation of probation and was sentenced to a term of 4 yеars incarceration. The recommended guidelines sentence was any nonstate prisоn sanction. (Appellant had only one prior conviction). Under
(1) This defendant, Roy Simmons, was originally placed on probation for a period of five (5) years for the drug abuse offense of possession of more than twenty (20) grams of cannabis. At the time of said sentence he had a previous felony conviction of grand larceny for which he had been placed on two (2) years probation on June 30, 1975.
(2) This defendant has twice been placed on probation prior to the latest violation of probаtion for which he is now being sentenced. His conviction is evidence that probation is not a sufficient or adequate deterrent from criminal activity.
(3) That the offense which constituted his latest violation of probation for which he is now being sentenced is a much more serious drug offense from that which he had previously been convicted. That is, he had escalated his drug related aсtivities from possession of more than twenty (20) grams of cannabis to the sale of 28.1 grams of coсaine, as well as by possession of a lesser amount of cocaine.
(4) That from his recоrd of continued violation of the drug laws, this defendant has shown a flagrant disregard for the laws of this state dealing with said offenses, and the maximum sentence under the guidelines, to-wit: community control or 12-30 months incarceration, is unrealistic and totally inadequate to deter this defendant from further criminal activity as evidenced by his prior conduct.
We find reasons 2, 3, and 4 to be valid. See Scott v. State, 469 So.2d 865 (Fla. 1st DCA 1985); Mincey v. State, 460 So.2d 396 (Fla. 1st DCA 1984)., Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984); Bowman v. State, 465 So.2d 1326 (Fla. 1st DCA 1985).
We find in reason number 1 that reference to apрellant‘s being placed on probation for the instant offense is not error. Sentencing in this cаse related only to the 1981 offense of possession, and the guidelines scoresheet only scores appellant‘s legal status at the time of the 1982 offense (not at the time of probаtion violation). Therefore, the probation was not used in calculating the recommendеd guidelines sentence. It is valid to rely on this factor not used in calculating the sentence. Burch v. State, 462 So.2d 548 (Fla. 1st DCA 1985).
The second sentence of reason number 1, relying on appellant‘s prior conviction, is an invalid reason for departure. Hendrix v. State, 475 So.2d 1218 (Fla. 1985). However, we note that although this consideration of appellant‘s prior record is not valid, it represents only a part of reason number 1 which emphаsized appellant‘s being on probation, not his prior felony status.
Appellant also argues that his violation of probation cannot be used as a basis of departure beyond the increase to the next higher guidelines range. We do not find
Accordingly, the order on appeal is Affirmed.
BOOTH, C.J., and ZEHMER, J., concur.