WILBUR ELLIS CAMPBELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A prior conviction already factored into sentencing guidelines cannot be used as a reason for departure from those guidelines.
The defendant received a ten-year sentence, an enhancement departing from the recommended sentencing guidelines. The trial court cited four reasons fo…
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WALDEN, Judge.
Wilbur Ellis Campbell was given a ten (10) year sentence. This was an enhancement — a departure from the recommended sentencing guidelines. The trial court based the departure upon these reasons:
1. Previous conviction of weapons charge — felony—shooting into occupied dwelling;
2. Defendant’s total disregard of safety for others;
8. No remorse — jury totally disregarded self-defense;
4. Court firmly believes defendant will use firearm again.
Reason No. 1 has been termed as “double-dipping” because the prior conviction is already figured in the guidelines score-sheet. It is now the law of this state, per cases decided after the taking of this appeal, that since prior convictions are already factored in as a part of the presumptive guidelines sentence, they may not be used as a clear and convincing reason for departure. State v. Davis, 477 So. 2d 565 (Fla.1985); State v. Williams, 477 So. 2d 570 (Fla.1985); Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
Reason No. 2 has been found to be an acceptable reason. Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984) and Williams v. State, 454 So. 2d 751 (Fla. 1st DCA 1984).
Reason Nos. 3 and 4 have been held to be insufficient reasons for departure. Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984) and Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984), approved by 477 So. 2d 565 (Fla.1985).
Using the criteria found in Albritton v. State, 476 So. 2d 158 (Fla.1985), we reverse the sentence and remand for resentencing in accordance with the views herein expressed.
As to the suggestion that a fine or costs were incorrectly imposed, the record does not support such allegation.
Reversed and Remanded.
DELL, J., and BOARDMAN, EDWARD F. (Retired), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Roges Previlon v. State, 500 So. 2d 716 (Fla. 4th DCA 1987)…given by the trial court for departure was the creation of a risk of harm to innocent bystanders. This court has held that creation of an unreasonable risk of harm to others is a valid reason for departing from the guidelines. See Campbell v. State, 486 So. 2d 61 (Fla. 4th DCA 1986); Hannah v. State, 480 So. 2d 718 (Fla. 4th DCA 1986). In the present case the appellant fired two shots in a crowded auditorium, thus the facts support departure on this basis. This leaves us with the question whether, pursuant…
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Tyner v. State, 491 So. 2d 1228 (Fla. 2d DCA 1986)…ime, it may be used as a reason to depart from the guidelines. Thompson v. State, 483 So. 2d 1 (Fla. 2d DCA 1985). Departures have also been upheld where the manner in which the crime was committed endangered the safety of others. Campbell v. State, 486 So. 2d 61 (Fla. 4th DCA 1986); Cawthon v. State, 486 So. 2d 90 (Fla. 5th DCA 1986). Notwithstanding, Florida Rule of Criminal Procedure 3.701(d)ll states, “Reasons for deviating from the guidelines shall not include factors relating to the instant offenses f…
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Hall v. State, 503 So. 2d 1370 (Fla. 4th DCA 1987)…for robbery with a firearm. Aggravation of the sentence was upheld due to the defendant’s disregard for the welfare and safety of others. Three persons, other than the victim, were placed in extreme danger. Johnson at 50. See also Campbell v. State, 486 So. 2d 61 (Fla. 4th DCA 1986); Garcia v. State, 454 So. 2d 714 (Fla. 1st DCA 1984). In Hannah v. State, 480 So. 2d 718 (Fla. 4th DCA 1986), where the defendant was convicted of manslaughter with a firearm, this court recognized that the creation of an unreas…
Previewing 3 of 5 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)
- Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- State v. Davis, 477 So. 2d 565 (Fla. 1985)
- Williams v. State, 454 So. 2d 751 (Fla. 1st DCA 1984)
- State v. Herlovich, 455 So. 2d 1317 (Fla. 2d DCA 1984)
- Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984)
- State v. Williams, 477 So. 2d 570 (Fla. 1985)