WILLIAM HEAD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that when a sentencing court relies on impermissible reasons for departure from guidelines, the case must be remanded for resentencing if the weight given to impermissible reasons cannot be determined.
Defendant was convicted of aggravated battery and shooting into an occupied dwelling, resulting in the victim's paralysis. The trial court departed fr…
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BASKIN, Judge.
Defendant Head challenges the trial court’s departure from the sentencing guidelines, Fla.R.Crim.P. 3.701. Defendant was convicted of aggravated battery and shooting into an occupied dwelling; in the incident giving rise to the conviction, defendant shot the victim through a door after the victim had retreated into his apartment. As a result of the shooting, the victim is paralyzed.
The trial court announced twelve reasons for imposing a sentence of two ten-year concurrent terms of imprisonment instead of the recommended guidelines sentence of thirty months to three and one-half years. Of the twelve reasons, only one justifies a departure from the guidelines, namely the psychological impact on the victim of becoming paralyzed as a result of defendant’s criminal act. Because we find that only one of the twelve reasons given by the trial court is sufficient to justify departure from the sentencing guidelines, and because we cannot determine how much weight the trial court placed on the eleven impermissible reasons in departing from the guidelines, we remand the case for resentencing. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985); Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984); Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984). As did the courts in Baker, Carney, and Young, we certify the following question to the Supreme Court as being one of great public importance:
WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO DETERMINE IF THOSE REASONS JUSTIFY A DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENC-ING?
Remanded for resentencing.
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Brown v. State, 481 So. 2d 1271 (Fla. 5th DCA 1986)…asons absolutely vital to the making of the decision to depart.2 The sentence is vacated and the cause remanded for resentencing in view of Al-britton and Hendrix. REVERSED and REMANDED. COBB, C.J., and UPCHURCH, J., concur. . See Head v. State, 473 So. 2d 18 (Fla. 3d DCA 1985). "[B]ecause we cannot determine how much weight the trial court placed on the eleven impermissible reasons in departing from the guidelines, we remand the case for resentenc-ing." Id. See also Glover v. State, 474 So. 2d 886 (Fla.…
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Sias v. State, 487 So. 2d 1180 (Fla. 3d DCA 1986)…While we find factor one to be questionable and the state has conceded that factor three is invalid, we nonetheless hold that the sentence is affirmable in view of the psychological trauma, fear and terror inflicted upon this victim. Head v. State, 473 So. 2d 18 (Fla. 3d DCA 1985). The appellant participated in a gang rape in which the victim was severely violated. Though the appellant was not convicted of using a firearm, the record reveals that the victim was subjected to threats of the use of a gun and h…
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Essie Andres Perez v. State, 524 So. 2d 720 (Fla. 3d DCA 1988)…2d 1 (Fla.1983); Vickery v. State, 515 So. 2d 396 (Fla. 1st DCA 1987); Boatwright v. State, 512 So. 2d 955 (Fla. 1st DCA 1987); Fowler v. State, 481 So. 2d 565 (Fla. 5th DCA 1986); Walker v. State, 474 So. 2d 319 (Fla. 3d DCA 1985); Hagin v. State, 473 So. 2d 18 (Fla. 3d DCA 1985). Perez’s sentences, however, resulted from separate incidents occurring at separate times and places. The fact that the mandatory minimum portion of each sentence is consecutive is not violative of Palmer and its progeny. The Palm…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)
- Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984)