ALVIN JOHN GIBSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a sentence outside the guidelines must be reversed and remanded for resentencing if based on invalid grounds, and the appellate court cannot assume the sentence would have been the same without those grounds.
Appellant was convicted of armed robbery, kidnapping, and aggravated battery. The trial court departed from sentencing guidelines, citing eleven reaso…
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PER CURIAM.
We affirm appellant’s conviction for armed robbery, kidnapping and aggravated battery, finding his contentions relating to conviction to be without merit. Nonetheless, we agree that the sentence outside the guidelines should be reversed and remanded for resentencing.
As the basis for departure from the sentencing guidelines, the trial court stated eleven reasons. The first, lack of remorse, is an invalid ground for departure. State v. Mischler, 488 So. 2d 523 (Fla.1986).
Though the court properly considered the circumstances of the crimes in a number of stated reasons,1 Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984), the mere fact that the crimes were committed in a day care center cannot, by itself, be a valid reason for departure. Cf. Steiner v. State, 469 So. 2d 179, 182 n. 10 (Fla. 3d DCA) (because uniformity of sentencing is a goal of the guidelines, the specific protection needs of a particular area is an invalid reason for departure), review denied, 479 So. 2d 118 (Fla.1985).
Additionally, lack of provocation is a “common ingredient” in both armed robbery and kidnapping. See Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985). Since the record is not specific as to departure on this ground, we must assume that it was considered in departing on all counts and is therefore invalid.
It is unclear whether the trial court would have departed to such an extreme sentence of 283 years absent the invalid reasons. Albritton v. State, 476 So. 2d 158 (Fla.1985). Accordingly, this case is Reversed and remanded for resentencing.
. It should be noted that all of the grounds which make up a single factor (i.e., the circumstances surrounding the crime) ought to be consolidated into a single reason for departure.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vaughn R. Simpson v. State, 505 So. 2d 1378 (Fla. 1st DCA 1987)…. As no similar showing of vulnerability of the victims has been made in this case, however, departure was not justified. As stated in our original opinion, the lack of provocation has been disapproved as a reason for departure. See Gibson v. State, 489 So. 2d 836 (Fla. 3d DCA 1986) (lack of provocation a common ingredient in armed robbery); Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985), approved, 483 So. 2d 423 (Fla.1986) (lack of provocation an inherent component of armed robbery); Carney v. State, 458…
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State v. Myers, 515 So. 2d 333 (Fla. 3d DCA 1987)…of item a valid reason for departure when defendant charged with small amount of contraband is given same statutory offense as one who possessed larger amount). The state next contends that neither Myers’ expression of remorse, cf. Gibson v. State, 489 So. 2d 836 (Fla. 3d DCA 1986) (lack of remorse an invalid ground for departure), nor Myers’ non-violent personality, justifies departure. Cf McNealy v. State, 502 So. 2d 54 (Fla. 2d DCA 1987) (hypothesis that defendant is threat to society based solely on prio…
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State v. Williams, 515 So. 2d 1051 (Fla. 3d DCA 1987)…s threat to society solely based on prior record not a valid reason for departure); Brooks v. State, 490 [*1053] So. 2d 173 (Fla. 5th DCA 1986) (impermissible to base departure on possibility that “gain time” would reduce sentence); Gibson v. State, 489 So. 2d 836 (Fla. 3d DCA 1986) (lack of remorse an invalid ground for departure); State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986) (cooperation is not a basis for departure). Furthermore, in Williams v. State, 500 So. 2d 501 (Fla.1986), the supreme court hel…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)
- Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985)