JEROME ROOSEVELT BALDWIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerome Roosevelt Baldwin appealed his third-degree murder conviction sentence, contending that the trial judge improperly departed upward from sentencing guidelines based on the use of a firearm, general dangerousness, and the defendant's cocaine dealing activities. The court reversed and remanded for resentencing, holding that none of these factors legally justified departure from the guidelines.
The court held that none of these factors constituted proper grounds for upward departure from the guidelines. The use of the murder weapon itself cannot support aggravation, though the manner of its use might under certain circumstances. Generalized concerns about dangerousness do not meet the "clear and convincing" standard for departure. The defendant's cocaine dealing, while morally reprehensible, does not justify departure unless the conviction itself is based on that activity.
[1] A sentencing court may not depart from guidelines based solely on the fact that a weapon was used in the commission of a murder, as the use of a weapon is inherent in the…
[2] A sentencing court may not depart from guidelines based on the conclusion that the recommended sentence is insufficient for retribution, deterrence, rehabilitation, or pu…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We cannot allow the murder weapon, per se, to support aggravation, though the manner in which it is used might do so under certain circumstances.”
Establishes that the type of weapon used in a murder cannot independently justify departure from sentencing guidelines, as the guidelines already account for the fact that all murders involve use of a weapon.
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Join FLexlaw to unlock all legal intelligenceBaldwin was convicted of third-degree murder. At sentencing, the trial judge imposed a sentence above the guideline recommendation of 3-7 years, citin…
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LETTS, Judge.
The trial judge here departed upwards from the guidelines during a sentencing hearing based upon a third-degree murder conviction because “the defendant committed the offense by using a .38 caliber handgun firearm.” He also based the departure on two other reasons discussed hereafter. We reverse and remand for resentencing.
The guidelines have already assigned the number of points to be scored for murder. All murders require the use of a weapon, even if that weapon is but a silk stocking, or even hands, employed for strangulation. We cannot allow the murder weapon, per se, to support aggravation, though the manner in which it is used might do so under certain circumstances. See Scurry v. State, 489 So. 2d 25 (Fla.1986), wherein the use of a rifle was rejected as a reason to depart from the guidelines.
Another reason given for departure was that “the guidelines recommendation of 3-7 years incarceration is insufficient for retribution, deterrence or rehabilitation and for the safety of the public.” While we might agree personally with this pronouncement, we must nonetheless reverse. As the Supreme Court recently held, “the fact that [the defendant] ‘has engaged in a violent pattern of conduct which indicates a serious danger to society’ is not a clear and convincing reason for departure under the facts of this cáse.” See Williams v. State, 492 So. 2d 1308 (Fla.1986).
Finally, the trial judge justified departure because “the evidence clearly established that the defendant was dealing in cocaine when he shot and killed the victim.” There is nothing in the record to suggest that the defendant’s activities as a drug dealer were factored into the scoresheet. Drug dealers are despicable. They tear the precious fabric of our society, bringing chaos to our criminal justice system and often, as in this case, death. Dealing in cocaine, therefore, should be a clear and convincing reason for departure unless the conviction is for that very reason. However, a reading of the current opinions by our Supreme Court on guideline departures leads us to conclude that the trial judge was in error. See State v. Mischler, 488 So. 2d 523 (Fla.1986); Scurry v. State, 489, So. 2d 25 (Fla.1986) and Williams v. State, 492 So. 2d 1308 (Fla.1986).
REVERSED AND REMANDED FOR RESENTENCING.
ANSTEAD and DELL, JJ., concur.
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Huhn v. State, 511 So. 2d 583 (Fla. 4th DCA 1987)…for departure. Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984); Williams v. State, 454 So. 2d 756 (Fla. 1st DCA 1984). This court has not agreed, however, and the Florida Supreme Court has vindicated its view. Most recently, in Baldwin v. State, 494 So. 2d 503 (Fla. 4th DCA 1986), this court called attention to Williams v. State, 492 So. 2d 1308 (Fla.1986), in which the Florida supreme court shot down, as a departure reason, “the fact that [the defendant] ‘has engaged in a violent pattern of conduct which…
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ABT v. State, 528 So. 2d 112 (Fla. 4th DCA 1988)…ms v State, 483 So2d 121 [Fla. 2nd DCA 1986]. He has been and is a threat to society. Middleton v. State, 489 So2d 201 [Fla. 2nd DCA 1986]. The suggested guidelines sentence is insufficient for his rehabilitation or deterence (sic). Baldwin v State, 494 So2d 503 [Fla. 4th DCA 1986]. The conduct and method of this HOME INVASION Burglary was so outrageous and contemptible in and of itself, so as to demand a deviation for these most clear and convincing of reasons, Roberge v State, 489 [484] So2d 82. As we an…
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Hall v. State, 503 So. 2d 1370 (Fla. 4th DCA 1987)…. 2d 1016 (Fla.1986); Scurry v. State, 489 So. 2d 25 (Fla.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…
Previewing 3 of 4 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)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)