ROGER WIGGINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roger Wiggins appealed his conviction for grand theft and aggravated battery, challenging the trial court's departure from sentencing guidelines. The appellate court held that three of the six reasons cited by the trial court to justify departure were legally invalid and reversed the sentence for resentencing.
The court held that three of the six reasons for departure were invalid: (1) victim injury that was already scored as points on the guidelines worksheet cannot additionally justify departure; (2) premeditation that is an inherent component of the crime cannot justify departure; and (3) lack of remorse, particularly when based on a defendant's failure to confess guilt, cannot justify departure from the guidelines.
[1] A trial court may not depart from sentencing guidelines based on victim injury that has already been scored and accounted for in the defendant's score sheet.
[2] A trial court may not depart from sentencing guidelines based on an element inherent to the crime for which the defendant is being sentenced.
Previewing 2 of 4 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“The injury sustained by Picklo, while unfortunate and worthy of punishment by scoring points for "victim injury" on Wiggins' score sheet, does not additionally justify departing from the guidelines.”
Establishes that victim injury already reflected in guideline points cannot be used as an independent reason for departure
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWiggins was convicted of grand theft of an automobile and aggravated battery. He intentionally drove an automobile into Officer Picklo, causing injury…
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BARKETT, Judge.
Roger Wiggins was convicted of grand theft of an automobile and aggravated battery. He contends the trial court erred in departing from the sentencing guidelines in sentencing him. The trial court listed six reasons for the departure. Three of the six reasons given cannot justify departure from the guidelines. These three are: (1)-that the defendant caused serious and permanent harm to Officer Picklo when he intentionally and deliberately drove an automobile into Picklo; (2) that the defendant planned and calculated the grand theft with clear premeditation by stealing the keys the day before stealing the automobile; and (3) that the defendant did not demonstrate any remorse or regret for his crimes.
The trial court erred in considering Picklo’s injury as a reason for departing from the guidelines. Wiggins received 24 points on his score sheet for moderate victim injury to Picklo. The injury sustained by Picklo, while unfortunate and worthy of punishment by scoring points for “victim injury” on Wiggins’ score sheet, does not additionally justify departing from the guidelines. See Knowlton v. State, 466 So. 2d 278, 280 (Fla. 4th DCA 1985); Mischler v. State, 458 So. 2d 37, 38 (Fla. 4th DCA 1984).
Similarly, the trial court erred in considering Wiggins’ “premeditation” of grand theft by stealing the keys to the automobile prior to stealing the automobile itself. An inherent component of a erime will not justify a departure from the guidelines because the component is already built into the guidelines. Baker v. State, 466 So. 2d 1144, 1145 (Fla. 3d DCA 1985); Knowlton, 466 So. 2d at 280. Moreover, there was no evidence presented at trial that Wiggins had in fact stolen the keys a day before stealing the automobile. The record does not contain a proper evidentiary basis for such a conclusion. Thus, this reason for departure is not justified on the facts. Cf. Wyman v. State, 459 So. 2d 1118 (Fla. 1st DCA 1984).
Additionally, the trial court erred in considering Wiggins’ lack of remorse as a reason for departing from the guidelines. A court may not depart from the guidelines “simply because a defendant testifies at trial that he did not commit the crime alleged.” Garcia v. State, 466 So. 2d 1211, 1212 (Fla. 4th DCA 1985). See also Bowdoin v. State, 464 So. 2d 596, 597 (Fla. 4th DCA 1985); Hubler v. State, 458 So. 2d 350, 353 (Fla. 1st DCA 1984); Mischler, 458 So. 2d at 38.
Finding three of the trial court’s six reasons for departure invalid, we reverse and remand this case to the trial court for reconsideration and resentencing. See Albritton v. State, 476 So. 2d 158 (Fla.1985).
REVERSED AND REMANDED FOR RESENTENCING.
HURLEY, J., and WESSEL, JOHN D., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Isgette v. State, 494 So. 2d 534 (Fla. 4th DCA 1986)…cient to show beyond a reasonable doubt that appellant’s sentence would have been the same had it been based only on the violence of the aggravated battery. First, violence was only one of four reasons relied upon for departure. In Wiggins v. State, 476 So. 2d 257 (Fla. 4th DCA 1985), this court remanded for resen-tencing under Albritton on the basis that half of the six reasons given by the trial court were invalid. Similar reasoning would seem to apply here. Second, as discussed above, the trial judge was a…
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Bailey v. State, 485 So. 2d 482 (Fla. 3d DCA 1986)…absence of the invalid reasons would not have affected the departure sentence,” we reverse and remand for resentencing. Albritton v. State, 476 So. 2d 158, 160 (Fla.1985). See Flemmings v. State, 476 So. 2d 292 (Fla. 3d DCA 1985); Wiggins v. State, 476 So. 2d 257 (Fla. 4th DCA 1985); Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985). Reversed and remanded.…
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Hubert v. State, 491 So. 2d 615 (Fla. 5th DCA 1986)…bert committed these crimes, and what injuries his victim suffered. Clearly the record must sustain and support the reasons for a departure sentence articulated by a trial judge. Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986); Wiggins v. State, 476 So. 2d 257 (Fla. 4th DCA 1985), review denied, 486 So. 2d 598 (Fla.1986); Ryder v. State, 464 So. 2d 1324 (Fla. 5th DCA 1984). . Fla.R.Crim.P. 3.701.…1 / 2
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)
- Hubler v. State, 458 So. 2d 350 (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)
- Wyman v. State, 459 So. 2d 1118 (Fla. 1st DCA 1984)
- Domingo Garcia v. State, 466 So. 2d 1211 (Fla. 4th DCA 1985)