RICHARD JAMES THORNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Thorne appealed his conviction and sentences for four armed robberies, challenging the trial court's departure from sentencing guidelines. The appellate court affirmed the conviction but partially vacated and remanded the sentences, holding that while minimum mandatory sentences for firearm-related counts were permissible, other reasons for departure from guidelines were invalid.
The court held that the minimum mandatory sentences for firearm-related robberies constitute an alternative sentence within the guidelines and do not constitute an improper departure. However, the court's other stated reasons for departure—based on prior record, crime wave pattern, and characteristics of armed robbery—were invalid because they involved factors already considered in calculating the guidelines sentence.
[1] Minimum mandatory sentences take precedence over recommended guidelines sentences when the former are greater.
[2] Consecutive minimum mandatory sentences may be imposed for separate and distinct offenses, each involving a separate victim.
Previewing 2 of 5 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“Where, as here, the recommended guideline sentence is less than the minimum mandatory sentence, the minimum mandatory sentence takes precedence.”
Establishes that mandatory minimums override guidelines when guidelines sentences fall below mandatory requirements
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Join FLexlaw to unlock all legal intelligenceThorne was convicted of four counts of armed robbery, three involving the use of a firearm. The recommended guidelines sentence range was 5.5 to 7 yea…
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SCHEB, Judge.
Defendant Richard Thorne appeals his judgment of conviction and his sentences for four counts of armed robbery. He argues the trial judge improperly departed from the recommended guidelines sentence.
The defendant was convicted of four counts of armed robbery. Three of the counts involved the use of a firearm. The recommended guidelines sentence range was five and one-half to seven years’ imprisonment. The trial court sentenced the defendant to four consecutive five-year sentences on the four counts with three consecutive three-year minimum mandatory sentences for the three counts involving firearms. The trial judge gave the following written reasons for departure: “(1) minimum mandatory is greater, (2) charges constituted a ‘crime wave’; his prior record of behavior of this assaultive nature makes him a continuing threat to the public, (3) potential danger to victims; involved use of a dangerous weapon; involved multiple victims.”
As to the court’s first reason, we observe that the recommended guidelines sentence for the four offenses was less than the three consecutive three-year minimum mandatory sentences imposed for the robberies involving the use of a firearm. Where, as here, the recommended guideline sentence is less than the minimum mandatory sentence, the minimum mandatory sentence takes precedence. Fla.R.Crim.P. 3.701(d)(9); Prentice v. State, 469 So. 2d 798 (Fla. 2d DCA 1985). Furthermore, the court’s imposition of three consecutive minimum mandatory sentences was consistent with State v. Thomas, 487 So. 2d 1043 (Fla.1986), because each robbery was a separate and distinct offense involving a separate and distinct victim. See also James v. State, 462 So. 2d 858 (Fla. 2d DCA 1985).
The court’s second reason for departure is invalid because it is based on the defendant’s prior record and involves factors already taken into account in calculating the guidelines sentence. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). See also Williams v. State, 492 So. 2d 1308 (Fla.1986); McCray v. State, 488 So. 2d 912 (Fla. 2d DCA 1986).
The court's third reason for departure concerning the potential danger to victims, number of victims and use of a dangerous weapon is invalid because it also involves factors already taken into account in calculating the guidelines sentence. The potential danger to victims is inherent in the nature of an armed robbery. Olive v. State, 489 So. 2d 893 (Fla. 3d DCA 1986). The number of victims, one in each robbery, and the use of a dangerous weapon are essential elements of an armed robbery. See State v. Mischler, 488 So. 2d 523 (Fla.1986).
Finally, we reject the defendant’s contention that the trial court’s reasons for departure do not qualify as being written because they were only listed on the guidelines scoresheet. Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986).
We hold that the court’s first reason for departure based on the minimum mandatory sentences for the three counts involving a firearm is actually an alternative sentence under the guidelines. Therefore, the court did not err in imposing the consecutive minimum mandatory sentences. Since the court’s remaining reasons for departure are invalid, the court erred in oth erwise departing from the presumptive guidelines sentence.
Accordingly, we affirm the defendant’s conviction but we vacate his sentences. We remand for the imposition of three consecutive, three-year minimum mandatory sentences for the offenses involving the use of a firearm and the imposition of a sentence within the guidelines on the offense not involving the use of a firearm. The latter sentence must run concurrently with the consecutive, minimum mandatory sentences because the nine-year sentence exceeds the recommended guidelines sentence. The defendant need not be present for resentencing.
GRIMES, A.C.J., and RYDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Lumpkin v. State, 510 So. 2d 1164 (Fla. 3d DCA 1987)…he crime created extreme psychological trauma to the victims and their family.” None of these reasons warrant departure. Extreme risk to the physical safety of the victims of an armed robbery is inherent in the nature of the crime. Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986); Olive v. State, 489 So. 2d 893 (Fla. 3d DCA 1986). It is therefore already factored into the guidelines and is an invalid reason for departure. Thorne, Olive, see State v. Mischler, 488 So. 2d 523 (Fla.1986); Williams v. State, 4…
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Mash v. State, 499 So. 2d 35 (Fla. 1st DCA 1986)…s. We find all three reasons to be invalid and reverse and remand for resentencing. [*36] Reason # 1 is invalid on three separate points. First, the use of a dangerous weapon is an essential element of the offense of armed robbery, Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986), and is thus a factor already taken into account in calculating the guideline sentence. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Second, since appellant was not convicted of wearing a mask, pursuant to sections 876.13 and 876…
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Cathern "Cathy" Vogtsberger v. State, 502 So. 2d 984 (Fla. 1st DCA 1987)…Since the reasons in the instant case are stated in a manner that allows adequate appellate review, we see no reason for requiring them to have been stated in a separate order. See Knight v. State, 501 So. 2d 150 (Fla. 1st DCA 1987), Thome v. State, 496 So. 2d 891 (Fla. 2d DCA 1986), and Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986). But see Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986) and Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986). Appellant next argues that, assuming the writing to b…
Previewing 3 of 9 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)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- State v. Thomas, 487 So. 2d 1043 (Fla. 1986)
- Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986)
- James v. State, 462 So. 2d 858 (Fla. 2d DCA 1985)
- Prentice v. State, 469 So. 2d 798 (Fla. 2d DCA 1985)
- McCRAY v. State, 488 So. 2d 912 (Fla. 2d DCA 1986)
- Varnes v. State, 489 So. 2d 893 (Fla. 2d DCA 1986)