ROBERT LEON BOWDOIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Leon Bowdoin appealed his conviction for robbery with a deadly weapon and his eight-year sentence. The appellate court affirmed the conviction but reversed the sentence, finding that the trial court abused its discretion by departing from sentencing guidelines based on impermissible factors.
The court affirmed the conviction but reversed the sentence, holding that none of the three factors cited by the trial court justified departure from the sentencing guidelines, and thus the departure constituted an abuse of discretion. The sentence was remanded for resentencing within the guidelines.
[1] A trial court abuses its discretion when it departs from sentencing guidelines based on factors already accounted for in the presumptive sentence.
[2] Prior marijuana use during high school is not a valid reason for departing from sentencing guidelines when it is not a circumstance surrounding the offense.
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Join FLexlaw to unlock all legal intelligence“We hold none of the enumerated factors relied upon in this case justified the departure from the guidelines and, thus, the departure constitutes an abuse of discretion.”
Establishes the core holding that the trial court abused its discretion in departing from sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceBowdoin was convicted of robbery with a deadly weapon. At trial, he presented alibi witnesses testifying he was at home during the robbery. The presen…
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DOWNEY, Judge.
Appellant seeks reversal of a conviction of robbery with a deadly weapon and sentence to eight years’ incarceration. We have considered all three of the appellate points presented and find only one has any merit, that being the departure from the sentencing guidelines.
At trial appellant presented witnesses who testified to an alibi, that appellant was at home having dinner and watching television during the time of the robbery. In the sentencing phase of the ease the trial court had available a presentence report that indicated appellant had used marijuana during his high-school years. In sentencing appellant the trial court departed from the sentencing guidelines and the indicated term of four years’ incarceration, and sentenced appellant to eight years’ incarceration. The stated reasons for deviation were appellant’s prior use of marijuana, his use of a gun in the commission of the crime, and his lying under oath in claiming an alibi.
We hold none of the enumerated factors relied upon in this case justified the departure from the guidelines and, thus, the departure constitutes an abuse of discretion. The use of a firearm was already factored into the presumptive sentence. Callaghan v. State, 462 So. 2d 832 (Fla. 4th DCA 1984). The use of marijuana during his high-school days was not a circumstance surrounding the offense. Fla.R. Crim.P. 3.701(b)(3). Finally, as appellant puts it, “it is apparent [from the judge’s colloquy] that the Trial Court intended to punish this defendant in that he believed that a defensive alibi that fails because of conviction by a jury ... is tantamount to prove that the defendant and/or his witnesses have lied.” To depart from the guidelines because the jury did not “buy” a defendant’s defense is somewhat analogous to enhancing a defendant’s sentence because he shows no remorse when all the while he maintained he was innocent. That enhancement practice has been condemned. Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984).
For the foregoing reasons we affirm the judgment of conviction, but reverse the sentence and remand the cause for resentencing.
AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.
HERSEY and HURLEY, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (23 total)
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Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)…voke the defendant’s actions. 5. The victim was a uniformed police officer. It is well established that an inherent component of the crime, being already built into the guideline range, will not justify a guideline departure. See Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985) (use of gun inherent component of robbery with a deadly weapon); Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984) (premeditation, calculation, objective of pecuniary gain, and lack of provocation inherent components of armed ro…
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Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985)…r court, “[t]o depart from the guidelines because the jury did not 'buy’ a defendant’s defense is somewhat analagous to enhancing a defendant’s sentence because he shows no remorse when all the while he maintained he was innocent.” Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985). The court noted that the latter practice was condemned by this Court in Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984). Reason #2, though, is proper as having an adequate basis in the record. Carney v. State, 458 So. 2d 13…
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Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)…or stating that he committed “perjury.” In Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985), we condemned as a departure ground the trial court’s conclusion that the defendant had “perjured” himself during his testimony. Accord, Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985). Notwithstanding that we invalidate two of the reasons considered by the trial court to be sufficient for departure, we have held that if only one remaining reason is sound, i.e., clear and convincing, the enhanced sentence will…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984)
- Callaghan v. State, 462 So. 2d 832 (Fla. 4th DCA 1984)