Phillips v. State

District Court of Appeal of Florida

Phillips v. State

481 So. 2d 996, 11 Fla. L. Weekly 268, 1986 Fla. App. LEXIS 6080

CourtDistrict Court of Appeal of Florida

DecidedJanuary 23, 1986

DocketNo. BE-79

StatusPublished

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This text of 481 So. 2d 996 (Phillips v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Phillips v. State, 481 So. 2d 996, 11 Fla. L. Weekly 268, 1986 Fla. App. LEXIS 6080 (Fla. Ct. App. 1986).

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Opinion

WIGGINTON, Judge.

Appellant entered a plea of guilty to the charge of aggravated battery. At sentencing, the trial court departed from the recommended guidelines range of twelve to thirty months’ incarceration or community control and sentenced appellant to fifteen years’ incarceration. As its third reason for departure, the trial court set forth that appellant “has shown to this Court no remorse and has not accurately reported or indicated his part in the involvement.” We have held that “lack of remorse” is an improper reason for departure. Hunt v. State, 468 So.2d 1100 (Fla. 1st DCA 1985); Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984). Despite that one invalid reason, however, we affirm. Although the State did not have the benefit of the supreme court’s decision in Albritton v. State, 476 So.2d 158 (Fla.1985), and therefore did not attempt to show beyond a reasonable doubt that the absence of the invalid reason would not have affected the departure sentence, this Court’s review of the remaining two valid reasons in light of the record and the arguments made have persuaded us beyond a reasonable doubt that the trial court would have sentenced appellant in the same manner without the benefit of the invalid reason relied upon. Ross v. State, 478 So.2d 480 (Fla. 1st DCA 1985).

AFFIRMED.

ERVIN, J., and McCORD, GUYTE P., Jr. (Ret.), Associate Judge, concur.

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WIGGINTON, Judge.

Appellant entered a plea of guilty to the charge of aggravated battery. At sentencing, the trial court departed from the recommended guidelines range of twelve to thirty months’ incarceration or community control and sentenced appellant to fifteen years’ incarceration. As its third reason for departure, the trial court set forth that appellant “has shown to this Court no remorse and has not accurately reported or indicated his part in the involvement.” We have held that “lack of remorse” is an improper reason for departure. Hunt v. State, 468 So.2d 1100 (Fla. 1st DCA 1985); Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984). Despite that one invalid reason, however, we affirm. Although the State did not have the benefit of the supreme court’s decision in Albritton v. State, 476 So.2d 158 (Fla.1985), and therefore did not attempt to show beyond a reasonable doubt that the absence of the invalid reason would not have affected the departure sentence, this Court’s review of the remaining two valid reasons in light of the record and the arguments made have persuaded us beyond a reasonable doubt that the trial court would have sentenced appellant in the same manner without the benefit of the invalid reason relied upon. Ross v. State, 478 So.2d 480 (Fla. 1st DCA 1985).

AFFIRMED.

ERVIN, J., and McCORD, GUYTE P., Jr. (Ret.), Associate Judge, concur.

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481 So. 2d 996, 11 Fla. L. Weekly 268, 1986 Fla. App. LEXIS 6080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-state-fladistctapp-1986.

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