THEODORE ROOSEVELT HUNT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Theodore Roosevelt Hunt appealed his conviction for armed robbery and carrying a concealed weapon, challenging the trial court's departure from sentencing guidelines by imposing 25 years instead of the recommended 3.5-4.5 years. The court affirmed, finding that three of the five stated reasons for departure were proper and legally sufficient to justify the variance.
The court affirmed the sentence, holding that three of the five reasons for departure were proper and legally sufficient. Reasons based on the defendant's demeanor and lack of remorse while maintaining innocence (reasons #1 and #3) were improper, but reasons based on the nature and circumstances of the crime (#2), prior criminal conduct (#4), and rehabilitation/public protection considerations (#5) were proper and justified the departure.
[1] A trial court may not depart from sentencing guidelines based on a jury's disbelief of a defendant's alibi testimony.
[2] A trial court may depart from sentencing guidelines based on the extreme fright and psychological trauma inflicted upon a victim during the commission of a crime.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[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.”
Establishes that departing from sentencing guidelines based on jury rejection of alibi testimony or defendant's lack of remorse while maintaining innocence is improper
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Join FLexlaw to unlock all legal intelligenceHunt was convicted of armed robbery and carrying a concealed firearm. He testified at trial claiming an alibi, which the jury rejected. The robbery oc…
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WIGGINTON, Judge.
This appeal is from a judgment and sentence for armed robbery and carrying a concealed weapon. We affirm.
Under point Y, appellant argues that the trial court erred in imposing a sentence outside the recommended guidelines range of three and one-half to four and one-half years incarceration. Indeed, the court did depart from the guidelines range and sentenced appellant to twenty-five years in Florida State Prison for the armed robbery count, and, to five years for the concealed firearm count. The court’s reasons for departure are as follow:
1. The Court heard the Defendant testify at the trial as to alibi, which testimony the jury apparently did not believe and the jury convicted him of armed robbery as charged. This Court finds that he was not telling the truth and that his testimony was unreasonable and unworthy of belief.
2. At the time of the robbery the Defendant went to the victim’s place of employment at night, knowing that the victim was there alone; pointed a gun at her and scared the victim. Although he told her he did not intend to harm her, his actions by pointing the gun at her and ordering her to the back of the store created tremendous fright in the female victim.
3. The Court finds, in considering the Defendant’s demeanor, that he did not show any remorse during the trial, nor did he show any remorse this date.
4. The Court finds that the Defendant was sentenced for an unarmed robbery in December, 1983 and that he committed said unarmed robbery in close proximity to the time of the armed robbery in the case sub judice showing a total disregard for the law and also exhibiting a propensity to be dangerous to society.
5. This Court further finds that the 3½-4½ year guidelines is based without considering the unarmed robbery and is insufficient to property [sic] rehabilitate this man, to protect society and to provide retribution and rehabilitation of this particular Defendant.
We find reason # 1 to be improper. As in the words of our sister 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 (Fla. 1st DCA 1984); Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984); but cf. Knowlton v. State, 466 So. 2d 278 (Fla. 4th DCA 1985). It may also be justified as taking into consideration the psychological trauma suffered by the victim. Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA 1985).
Reason # 3 is improper, again, since appellant maintained his innocence throughout the trial. Hubler v. State, Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984).
However, reason #4 is acceptable. Florida Rule of Criminal Procedure 3.701d.5.a) prohibits consideration of past criminal conduct for which convictions were not obtained prior to the commission of the primary offense for purposes of scoring under the prior record category. Here, the trial court properly did not consider the unarmed robbery conviction for that reason. However, nothing in rule 3.701 prohibited the court from taking that conviction into consideration for purposes of departure. Rule 3.701d.11. only prohibits as reasons for departure factors relating to prior arrests without conviction, or to the instant offense for which convictions have not been obtained. The court considered nothing to contravene that prohibition. In holding this reason to be proper, we note that at least two of our sister courts have arrived at similar conclusions. See Prince v. State, 461 So. 2d 1015 (Fla. 4th DCA 1984); and Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984).
Finally, reason # 5 also reflects a permissible consideration. Mincey v. State.
In summation, three out of the five reasons for departure we hold to be proper, but our review of the record leaves us with no feelings of uncertainty concerning the trial court’s decision to deviate from the guidelines here. Thus, we have no occasion to reverse and remand for resentencing. Brooks v. State, 456 So. 2d 1305 (Fla. 1st DCA 1984).
AFFIRMED.
SMITH, J., concurs.
SHIVERS, J., dissents with written opinion.
SHIVERS, Judge,
dissenting.
I respectfully dissent. I would affirm the conviction but would reverse and remand for resentencing.
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Cited By (29 total)
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State v. Lyles, 576 So. 2d 706 (Fla. 1991)…t was convicted of Breach of Peace and Disorderly Intoxication on October 27,1988 and of Driving While Intoxicated on March 3, 1989. These offenses occurred when the Defendant was awaiting trial while out on bond in the instant case. Hunt v. State, 468 So. 2d 1100, 1101 (1st DCA 1985); Austin v. State, 507 So. 2d 132 (1st DCA 1987). DONE AND ORDERED at Jacksonville, Duval County, Florida, this 7th day of April, 1989. This statement was executed by the judge on Friday, April 7, 1989, the same day as the sen…
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Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985)…ded guidelines sentence. Defendant’s lack of remorse is not a clear and convincing reason to depart from the guidelines. See Sarvis v. State, 465 So. 2d 573 (Fla. 1st DCA 1985); Cf. Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984); Hunt v. State, 468 So. 2d 1100, 1101 (Fla. 1st DCA 1985). Therefore, finding that the majority of the trial judge’s reasons for departure from the guidelines are valid, clear and convincing, we conclude that his reliance on three impermissible reasons constitutes only harmless e…
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Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985)…tain his innocence, despite the jury verdict to the contrary, he incurred the judge’s wrath. These are neither proper nor clear and convincing reasons to impose a departure sentence. Kossow v. State, 468 So. 2d 1104 (Fla.2d DCA 1985); Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984). At the sentencing hearing the trial court also said in the written transcript that Vance should be sentenced to a prison…
Previewing 3 of 29 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984)
- Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984)
- Knowlton v. State, 466 So. 2d 278 (Fla. 4th DCA 1985)
- Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985)
- Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984)
- Brooks v. State, 456 So. 2d 1305 (Fla. 1st DCA 1984)
- Prince v. State, 461 So. 2d 1015 (Fla. 4th DCA 1984)
- Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA 1985)