WILLIAM EARL PARKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE; MICHAEL HUGHEY, APPELLANT, V. STATE OF FLORIDA, APPELLEE
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Parker and Hughey appealed their sentences for robbery, firearm use, and possession of a short-barreled shotgun, challenging a significant departure from guideline sentences. The Florida appellate court vacated the sentences and remanded for resentencing because the trial judge's stated reasons for departing from guidelines were either legally insufficient or unsupported by the record.
The court held that the trial judge's reasons for departure were legally insufficient and vacated the sentences for resentencing. The court found that reasons based on lack of remorse and the defendant forcing a trial were improper under recent supreme court decisions, that the separate weapon offense reason was invalid because it was already scored, and that while victim impact and risk to others might be appropriate, the record did not clearly support the judge's findings.
[1] A victim's emotional distress, while relevant to sentencing, may not be a sufficient basis for a departure sentence if not clearly supported by the record.
[2] A defendant's lack of remorse is generally an insufficient basis for imposing a departure sentence.
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Join FLexlaw to unlock all legal intelligence“Certain of these written reasons, particularly numbers 3 and 5, have been held to be an inappropriate basis to impose a departure sentence.”
Establishes that lack of remorse and punishment for going to trial are improper sentencing factors under precedent.
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Join FLexlaw to unlock all legal intelligenceParker and Hughey were convicted of robbery, use of a firearm, and possession of a short-barreled shotgun. The trial judge imposed sentences totaling …
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SHARP, Judge.
Parker and Hughey appeal from sentences received after their convictions of robbery,1 use of a firearm,2 and possession of a short-barreled shotgun.3 We sua sponte consolidate these two cases on appeal because they involve co-defendants who were given identical departure sentences under the guidelines4 for identical reasons. Because the reasons given for departing are insufficient under current supreme court decisions, we vacate the sentences and remand for resentencing.
The trial judge sentenced these appellants to a total of thirty-five years in state prison in the face of a presumptive sentence range of nine to twelve years — a departure of four cells. Explaining his reasons, the trial judge wrote:
1. Victim Impact: Although no points are included in the guideline score-sheet, the Court observed the impact of this crime on the young station attendant who looked down the barrel of the shotgun. He was visibly shaken at the trial and throughout his testimony. He will bear the mental scar of this occurrence throughout his life.
2. Risk to Lives of Others: Throughout the perpetration of this crime other persons who came upon the scene were put in danger of losing their lives.
3. Lack of Remorse: The defendants have shown no remorse for the crime and insist that the attendant was swindled and cheated by a card trick. 4. Extensive Criminal Background: This defendant’s pre-sentence investigation revealed that he has throughout his life been engaged in criminal activity; that he is beyond rehabilitation and a menace to society.
5. Rights of the State and People: This defendant indicated in the plea bargaining before his criminal record was fully known, that he would enter a guilty plea if the guideline sentence was stipulated as the sentence range. The Court refused to be so bound and now feels justified, if not, compelled in imposing a sentence in excess of guideline maximum, particular [sic] since the P.S.I. now reveals the defendant’s criminal record is extensive. While recognizing that a defendant who protests his innocence and has a reasonable defense at trial should not be punished solely for going to trial. This Court believes that society has the right to impose a sentence in excess of the guideline maximum and more in line with the statutory penalty because the Court and the State refuse a guideline sentence cap on a defendant who, forces the judicial system through a two day trial and presents a defense at trial that was a ludicrous farce.
6. Separate Weapon Offense: The record indicates that the defendant had been traveling about all day with the short barrel shotgun in the car. He and his accomplices were apprehended a considerable distance from the scene with the shotgun in the car. This in the Court’s judgment justified a separate consecutive five (5) years sentence.
Certain of these written reasons, particularly numbers 3 and 5, have been held to be an inappropriate basis to impose a departure sentence. Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985); Garcia v. State, 466 So. 2d 1211 (Fla. 4th DCA 1985); Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984). Reason number 6 is also insufficient, because the crime of carrying the short-barreled shotgun was already calculated on the scoresheet. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Although reason numbers 1 and 2 may be appropriate, the record does not clearly support the trial judge’s findings in this case.
In our view, departures from the presumptive guideline sentence range have been considerably limited by recent judicial interpretations. Hendrix; Albritton v. State, 476 So. 2d 158 (Fla.1985). Only a few grounds for departure remain viable, and for how long we cannot say.5 Since the trial judge did not have the benefit of this recent case law at the time of sentencing, we vacate the sentences and remand for resentencing.
VACATE SENTENCES; REMAND.
COBB, C.J., and UPCHURCH, J., concur. . § 812.13(2)(a), Fla.Stat. (1983).
. § 790.07(2), Fla.Stat. (1983).
. § 790.221, Fla.Stat. (1983).
. Fla.R.Crim.P. 3.701(d)(ll).
. See, e.g., Weems v. State, 469 So. 2d 128 (Fla.1985) (unscored convictions valid reason for departure).
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Citator
Cited By
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Dixon v. State, 492 So. 2d 410 (Fla. 5th DCA 1986)…onvicted of embezzlement as opposed to theft it would have placed embezzlement in a different category than theft for purposes of establishing a score under the sentencing guidelines. 488 So. 2d at 526. Reason (2) is also invalid. Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986); Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985). Reason (3) is unsupported by the record, particularly in light of the fact that Dixon had no record prior to this case. In addition, speculation about possible conduct is not a…
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LEE v. State, 486 So. 2d 709 (Fla. 5th DCA 1986)…. State, 481 So. 2d 1274 (Fla. 5th DCA 1986), it is questionable whether risk to physical safety of others (reason number one) remains a valid reason for departure. See Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986); see also Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986) (court states that risk to lives of others “may be appropriate” reason for departure but notes that the record did not clearly support trial judge’s findings in that case). But see Hannah v. State, 480 So. 2d 718 (Fla. 4th DCA 19…
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Hale v. State, 486 So. 2d 93 (Fla. 5th DCA 1986)…4 So. 2d 672 (Fla. 5th DCA 1985); Hart v. State, 464 So. 2d 592 (Fla. 2d DCA 1985). . See Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Burke v. State, 483 So. 2d 404 (Fla.1985); Edwards v. State, 482 So. 2d 553 (Fla. 2d DCA 1986); Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986); Pilgrim v. State, 480 So. 2d 688 (Fla. 5th DCA 1985); Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985)
- Domingo Garcia v. State, 466 So. 2d 1211 (Fla. 4th DCA 1985)