HENRY WILLIAMS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1986-08-27
No. BH-245
ZEHMER, J„ and VICTOR CAWTHON, Associate Judge, concur.
492 So. 2d 1388 Florida District Court of Appeal, First District (1986) Negative Treatment
Cited by 6 cases

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Synopsis

Henry Williams Jr. appeals his convictions for burglary and probation violation, challenging the trial court's refusal to give special jury instructions on aiding and abetting liability and the validity of the sentencing departure from guidelines. The appellate court affirmed the conviction but reversed the sentence, finding the trial court's stated reasons for departure legally invalid.


Holding

The court affirmed the conviction, finding the requested jury instructions properly denied because the standard jury instruction on principals adequately covered the defense theory and the requested instructions added nothing substantive. The court reversed the sentence, holding that all stated reasons for departure were legally invalid: retribution and deterrence cannot support departure, rehabilitation and public safety reasons based solely on prior criminal history are invalid, and criminal history cannot be used as a basis for departure when already factored into the guidelines score.


Headnotes

[1] A defendant is entitled to a jury instruction on his theory of defense if any evidence supports the instruction, but refusal is not error if the proposed instructions add…

[2] A trial court may not depart from sentencing guidelines based on a factor already weighed in arriving at the presumptive sentence.

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Key Quotes

“It is well settled that a defendant is entitled to a jury instruction on his theory of defense if any evidence was introduced which would support the instruction.”

Establishes the general rule for jury instructions in criminal cases, but the court found the standard instruction adequate here.

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Facts & Procedural History

On August 27, 1984, Williams pled guilty to dealing in stolen property and was placed on probation. On June 11, 1985, Williams was tried for burglary …

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Opinion of the Court
JOANOS, Judge.

JOANOS, Judge.

Henry Williams, Jr. appeals from two consecutive sentences of five years for the offenses of burglary and violation of probation. Williams alleges the trial court erred in (1) failing to give his requested jury instruction, and (2) failing to provide clear and convincing reasons for departure from the recommended guidelines range. We affirm in part and reverse in part.

On August 27, 1984, Williams pled guilty to dealing in stolen property and was placed on probation for four years. He served eight months in Duval County Jail as one condition of probation. On March 11,1985, an information was filed charging Williams with burglary of a structure; and on April 3, 1985, an affidavit for violation of probation charged Williams with violation of two conditions of his probation. On May 23, 1985, the State filed a notice of intent to seek an enhanced penalty, due to William’s prior conviction for dealing in stolen property.

On June 11, 1985, Williams was tried before a jury as a co-suspect in the burglary of a grocery store. A police officer testified that after Williams had been apprised of his rights, he stated that he knew a burglary had been planned, that he knew the two individuals involved in the burglary, and that he had received some of the goods taken from the grocery store in return for acting as a look-out. The two individuals who entered the grocery store testified that Williams had been in the area, but he had left before they actually entered the structure. One of the co-suspects also testified that Williams did not receive a share of the stolen goods.

Williams requested the following special jury instructions:

1. Presence at the scene of a crime, without more, is not sufficient to establish either intent to participate or act of participation.

2. Mere knowledge that an offense is being committed is not the same as participation with criminal intent.

3. Knowledge that a crime is going to be committed and presence at the scene, without more, is generally insufficient to establish aiding and abetting.

The trial court refused to give the requested instructions, on the ground that the standard jury instruction on prinicpals1 was an adequate statement of the law.

We find no error in the trial court’s denial of Williams’s requested jury instructions. It is well settled that a defendant is entitled to a jury instruction on his theory of defense if any evidence was introduced which would support the instruction. Smith v. State, 424 So. 2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983); Palmes v. State, 397 So. 2d 648, 652 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Pope v. State, 458 So. 2d 327, 329 (Fla. 1st DCA 1984); Johnson v. State, 484 So. 2d 1347 (Fla. 4th DCA 1986). Refusal to give the instruction is not error, however, when the proposed instructions add nothing to the standard instructions. Walker v. State, 428 So. 2d 321 (Fla. 1st DCA 1983); Wolack v. State, 464 So. 2d 587 (Fla. 4th DCA), petition for review denied, 476 So. 2d 676 (Fla.1985).

In this case, the jury was presented with two versions of Williams’s role in the burglary. The jury heard the defense version through the testimony of the two young men who actively committed the offense. According to their testimony, Williams had no knowledge of the burglary, was not present at the scene, and was not in possession of any of the stolen items. The State’s theory was presented through the testimony of the investigating officer, who testified that Williams said he knew the persons involved, knew what they planned to do, and received a portion of the items stolen in return for acting as a lookout. In light of the conflicting testimony, Williams’s requested jury instructions could possibly have been construed as judicial comment on the credibility of the witnesses. See Marr v. State, 470 So. 2d 703, 712 (Fla. 1st DCA), petition for review dismissed, 475 So. 2d 696 (Fla.1985). However, we need not reach that point as the standard instructions sufficiently addressed appellant’s defense. Therefore, the requested instructions were properly denied.

Probation revocation and sentencing proceedings were held on June 21, 1985. Williams was sentenced to serve five years on the probation revocation and five years on the burglary conviction, with the burglary sentence to run consecutively to the sentence imposed pursuant to probation revocation. The recommended guidelines sentence was 4½ to 5V2 years, based on the scoresheet total. Due to the probation violation, an increase to the next higher cell indicates a recommended sentence of 5V2 to 7 years. Fla.R.Crim.P. 3.701(d)(14). The trial court’s statement of reasons for departure provides:

1. The sentencing guidelines recommendation of 4½-5½ years is insufficient for retribution, deterrence, rehabilitation and for the safety of the public.

2. The Defendant’s criminal history indicates that a prison term of 4'/⅞-5½ years is inadequate punishment for this Defendant.

There are four components to the trial court’s first stated reason for departure. The first, that the recommended guideline sentence is insufficient for retribution, was held invalid in Williams v. State, 492 So. 2d 1308 (Fla.1986), and in Scurry v. State, 489 So. 2d 25, 27-29 (Fla.1986). See also Muff v. State, 490 So. 2d 1065 (Fla. 5th DCA 1986). The second ground for departure, deterrence, is also invalid. Scurry v. State, 489 So. 2d at 27-29; Santiago v. State, 478 So. 2d 47 (Fla. 1985); Alford v. State, 460 So. 2d 1000 (Fla. 1st DCA 1984); Allen v. State, 476 So. 2d 309, 310 (Fla. 2d DCA 1985). The third ground, that the guideline sentence is insufficient for rehabilitation and for the safety of the public, is invalid if, as in the instant case, it is predicated solely on the defendant’s prior criminal record. Williams v. State, 492 So. 2d at 1308; Harris v. State, 489 So. 2d 838 (Fla. 1st DCA 1986); Patty v. State, 486 So. 2d 16 (Fla. 1st DCA 1986); Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986).

The trial court’s second reason for departure, that the defendant’s criminal history indicates the guideline sentence is inadequate punishment, is invalid since it relates to matters already factored into the guidelines score. “A trial judge may not depart from the guidelines based on a factor which has already been weighed in arriving at a presumptive sentence.” Williams v. State, 492 So. 2d 1308 at 1309; State v. Mischler, 488 So. 2d 523 (Fla.1986); State v. Davis, 477 So. 2d 565 (Fla.1985); Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Scott v. State, 492 So. 2d 448 (Fla. 1st DCA 1986); Bailey v. State, 492 So. 2d 738 (Fla. 1st DCA 1986); Grooms v. State, 490 So. 2d 1053 (Fla. 1st DCA 1986).

Since the reasons given by the trial court for departure are invalid, the conviction is affirmed but the sentence is reversed and the case is remanded for resentencing.

ZEHMER, J„ and VICTOR CAWTHON, Associate Judge, concur. .Fla.Std.Jury Inst. (Crim.) 3.01, provides:

3.01 Principals

If two or more persons help each other [commit] [attempt to commit] a crime and the defendant is one of them, the defendant must be treated as if he had done all of the things the other person or persons did if the defendant:

1. Knew what was going to happen.

2. Intended to participate actively or by sharing in an expected benefit and

3. Actually did something by which he intended to help [commit] [attempt to commit] the crime.

“Help" means to aid, plan or assist. To be a principal, the defendant does not have to be present when the crime is [committed] [attempted].


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Citator

Cited By

  • Mash v. State, 499 So. 2d 35 (Fla. 1st DCA 1986)
    …is not an inherent component of armed robbery, the evidence in this case does not indicate that the victim suffered such unusual trauma as would support a departure. Reason #3 has specifically been found invalid by this court in Williams v. State, 492 So. 2d 1388 (Fla. 1st DCA 1986). See also Scurry v. State, 489 So. 2d 25 (Fla.1986). Accordingly, appellant’s sentence is reversed and this case is remanded to the trial court for resentencing. MILLS and JOANOS, JJ., concur.…
  • Zamora v. State, 580 So. 2d 894 (Fla. 3d DCA 1991)
    …PER CURIAM. Affirmed. Williams v. State, 492 So. 2d 1388 (Fla. 1st DCA 1986); Wolack v. State, 464 So. 2d 587 (Fla. 4th DCA), review denied, 476 So. 2d 676 (Fla.1985).…
  • Parker v. State, 795 So. 2d 1096 (Fla. 4th DCA 2001)
    …principals. Wolack v. State, 464 So. 2d 587, 588 (Fla. 4th DCA 1985). The first district has ruled that proposed instructions identical to those in this case were “sufficiently addressed” by the standard instruction on principals. Williams v. State, 492 So. 2d 1388, 1389 (Fla. 1st DCA 1986); accord McGuire v. State, 639 So. 2d 1043, 1047 (Fla. 5th DCA 1994). The trial judge did not abuse his discretion in giving only the standard jury instruction on principals. To the dissent, the proposed instruction here wa…

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