JEROME WHITFIELD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerome Whitfield appeals his departure sentence for manslaughter, challenging the trial court's decision to impose the statutory maximum of 15 years rather than the presumptive guideline sentence of 3-7 years. The appellate court vacates the sentence, finding that the trial court failed to provide clear and convincing reasons for the departure as required by law.
The appellate court held that the trial court did not provide clear and convincing reasons for the departure sentence. The court vacated the sentence and remanded for resentencing because the stated reasons were either improper (based on uncharged conduct), unsupported by evidence, or conclusory.
[1] A departure sentence cannot be based on factors relating to an offense for which the defendant has not been convicted.
[2] The fact that a firearm was used in connection with a killing is not a basis for a guidelines departure sentence.
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Join FLexlaw to unlock all legal intelligence“it is improper to base a departure sentence on factors relating to the offense for which convictions have not been obtained”
Establishes that departure sentences cannot be based on uncharged conduct or convictions
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Join FLexlaw to unlock all legal intelligenceWhitfield was charged with first degree murder for shooting a victim with a firearm. Pursuant to a plea agreement, he pleaded guilty to the lesser off…
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ORFINGER, Judge.
This is an appeal from a guidelines departure sentence. We vacate the sentence.
The defendant was charged by indictment with first degree murder by shooting the victim with a firearm. Pursuant to a plea agreement, defendant entered a plea of guilty to the lesser offense of manslaughter, with the understanding that the State would attempt to secure a departure sentence. The trial court adjudicated defendant guilty of manslaughter, a second degree felony, and departing from the presumptive sentence of 3 to 7 years, sentenced defendant to the statutory maximum penalty of 15 years’ imprisonment.
The written reasons given for departure were:
1. Alphonso Wayne Johnson testified in a sworn statement given March 19, 1985 that the shooting arose out a drug transaction during which defendant sold the victim a substance defendant represented was cocaine. Defendant was carrying the gun for protection while selling drugs. The victim was unarmed.
2. After the victim struck defendant and knocked him down defendant shot the victim in the chest. The victim turned and ran and defendant fired three shots at the victim while he was running from the scene.
3. Defendant fired the shots on a public street evincing a flagrant disregard of the safety of others.
4. A lesser term is not commensurate with the seriousness of the defendant’s crime.
Recent case law has sharply limited those factors which will support a departure sentence. Reason number one bases departure on the fact that the crime arose out of a drug transaction and the fact that defendant was carrying a gun. He was not convicted of any drug offense nor of carrying a firearm and it is improper to base a departure sentence on factors relating to the offense for which convictions have not been obtained. Fla.R.Crim.P. 3.701(d)ll. The fact that a firearm was used in connection with the killing is not a basis for departure. As the supreme court has recently noted, “Any other weapon, including bare hands, could be just as easily listed and justify guidelines departure in all cases of victim injury.” Scurry v. State, 489 So. 2d 25 (Fla.1986).
Reason number two is really only a narrative of how the offense occurred. The fact that the defendant shot the victim is the basis for the conviction. Reason number three is not supported by the record. The trial judge, noting the location of the crime, observed that it was a public street, but there was no evidence presented that the area was crowded with people at the time of the shooting or that anyone else was endangered. Thus, even if otherwise valid, this reason was not supported by credible evidence beyond a reasonable doubt. Scurry, supra; State v. Mischler, 488 So. 2d 523 (Fla.1986).
The trial court’s conclusion that the recommended sentence is not sufficiently severe for the crime which defendant committed is also not a clear and convincing reason for departure. See e.g. Montgomery v. State, 489 So. 2d 1225 (Fla. 5th DCA 1986); Brown v. State, 487 So. 2d 1158 (Fla. 5th DCA 1986); Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986). Therefore, reason number four is insufficient.
No clear and convincing reasons for departure having been given, we must vacate the sentence and remand for resentencing.
SENTENCED VACATED; REMANDED.
DAUKSCH and COBB, JJ., concur.
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State v. Devine, 512 So. 2d 1163 (Fla. 4th DCA 1987)…t the result is disproportionate in relation to the nature of the crime committed. See Williams v. State, 492 So. 2d 1308 (Fla.1986); Scurry v. State, 489 So. 2d 25 (Fla.1986); State v. Baker, 498 So. 2d 1031 (Fla. 1st DCA 1986); Whitfield v. State, 490 So. 2d 1358 (Fla. 5th DCA 1986); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985); State v. Davis, 464 So. 2d 195 (Fla. 3d DCA 1985). Thus, this reason was an improper basis for departure. In this case, a valid downward deviation occurred pursuant to a ple…
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Nivaldo Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986)…nder consideration does not support such a finding. See Fabelo v. State, 488 So. 2d 915 (Fla. 2d DCA 1986). The trial court erroneously considered that Echevarria fired a gun, an offense with which Echevarria was not charged, see Whitfield v. State, 490 So. 2d 1358 (Fla. 5th DCA 1986), and Echevarria’s involvement with the cocaine laboratory, an offense expressly negated by the jury’s verdict. See Crofton v. State, 491 So. 2d 317 (Fla. 1st DCA 1986); Dixon v. State, 492 So. 2d 410 (Fla. 5th DCA 1986); Baxter v…
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Hall v. State, 503 So. 2d 1370 (Fla. 4th DCA 1987)…a.1986); State v. Mischler, 488 So. 2d 523 (Fla.1986). Therefore, the fact that a dangerous weapon was used in the commission of this crime is not a valid ground to aggravate. Baldwin v. State, 494 So. 2d 503 (Fla. 4th DCA 1986); Whitfield v. State, 490 So. 2d 1358 (Fla. 5th DCA 1986); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985). The nature of the weapon used, or even the fact that it causes injury, is not a [*1372] valid reason to deviate from the guidelines, but the flagrant disregard for the safet…
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)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Montgomery v. State, 489 So. 2d 1225 (Fla. 5th DCA 1986)
- Wilson v. State, 490 So. 2d 1360 (Fla. 5th DCA 1986)
- Wilton Oliver Brown v. State, 487 So. 2d 1158 (Fla. 5th DCA 1986)