JAMES ROY BAILEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The judgment of conviction for second-degree murder is affirmed. Compare State v. Bryan, 287 So. 2d 73 (Fla.1973), cert. denied, 417 U.S. 912, 94 S.Ct. 2611, 41 L.Ed.2d 216 (1974), and Hines v. State, 227 So. 2d 334 (Fla. 1st DCA 1969), with Marasa v. State, 394 So. 2d 544 (Fla. 5th DCA), rev. denied, 402 So. 2d 613 (Fla.1981).
However, the sentence above that recommended by the sentencing guidelines must be reversed and the cause remanded for resentencing. As the State candidly admits, of the nine reasons given by the trial court to justify the departure, eight are invalid. The only valid reason given by the trial court is that the defendant created “a risk of harm to other people by shooting a firearm in an occupied business establishment.” Since the State has not been able “to show beyond a reasonable doubt that the 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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Citator
Cited By
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Tyner v. State, 491 So. 2d 1228 (Fla. 2d DCA 1986)…t instances, when victims are injured or bystanders are endangered, crimes have also been technically committed against those victims or bystanders. E.g., Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984) (aggravated assault); Bailey v. State, 485 So. 2d 482 (Fla. 3d DCA 1986) (shooting within a private building); Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985) (battery). Yet, unless a defendant is convicted of those crimes, it would appear that rule 3.701(d)ll precludes any consideration of his cond…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Bryan, 287 So. 2d 73 (Fla. 1973)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)
- Hines v. State, 227 So. 2d 334 (Fla. 1st DCA 1969)
- Marasa v. State, 394 So. 2d 544 (Fla. 5th DCA 1981)
- Migliorini v. New York, 417 U.S. 912 (U.S. 1974)
- Manzardo v. Pullman Co., 417 U.S. 912 (U.S. 1974)
- Wiggins v. State, 476 So. 2d 257 (Fla. 4th DCA 1985)
- Flemmings v. State, 476 So. 2d 292 (Fla. 3d DCA 1985)