WILLIAM E. BURGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Burge appealed his conviction and life sentence plus five years for armed robbery and drug possession, challenging the trial court's departure from sentencing guidelines. The appellate court reversed and remanded for resentencing, holding that the trial court relied on impermissible factors already incorporated in the guidelines calculation and unsupported reasons.
The appellate court reversed and remanded for resentencing because at least two of the seven reasons cited for departure were invalid under State v. Mischler: reliance on prior criminal history (already factored into the guidelines score) and the use of a firearm (already presumed in the armed robbery offense). Additionally, under Albritton v. State, the state failed to prove beyond reasonable doubt that the invalid reasons did not affect the sentence.
[1] A trial court may not depart from sentencing guidelines based on a defendant's prior criminal record, as this factor is already accounted for in calculating the guideline…
[2] A trial court may not depart from sentencing guidelines based on the use of a firearm in an offense if the possession of a firearm was already factored into the presumpti…
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“Reason number one is invalid because it relies on appellant's prior record, a factor already taken into account in calculating the guidelines score.”
Establishes that prior criminal history cannot be used as a basis for departure because it is already incorporated in the sentencing guidelines calculation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBurge was convicted of armed robbery and drug possession. He traveled from Alabama to Pensacola specifically to commit the armed robbery to obtain ill…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHIVERS, Judge.
We grant appellant Burge’s motion for rehearing, vacate the prior opinion, and substitute the following:
Burge originally appealed his conviction and sentence of life imprisonment plus five years for armed robbery and possession of drugs. The trial court departed from the recommended guidelines sentence of 17 to 22 years based on the following reasons:
(1) Defendant was sentenced to life imprisonment for the conviction of the armed robbery charge plus five years consecutive for the possession of drug charges. Defendant lived in Alabama and apparently traveled to Pensacola strictly for the purpose of committing an armed robbery in order to obtain illegal drugs. His pre-sentence investigation indicates that this defendant was convicted of not less than 15 prior felonies including three robberies. He was sentenced to state prison in the state of Alabama on numerous occasions.
(2) There is no indication whatsoever that this defendant will ever be rehabilitated; but, to the contrary, will continue to pose a threat to innocent victims. The defendant’s conduct and circumstances surrounding the commission of these particular offenses persuades the court that the guideline recommended range of sentence is not commensurate with the severity of the offenses as determined by the Legislature of Florida in that the recommended range of twenty years will only enable this defendant to once again prey upon the innocent victims of our society.
(3) While the victim did not suffer serious physical injury, he suffered obvious and profound emotional shock and trauma as a result of defendant’s action as indicated in the statement on the pre-sen-tence investigation.
(4) The offense for which this defendant was convicted involved the use of a firearm and created a great risk of injury or death to the innocent victim.
(5) The defendant showed little or no remorse for having committed this offense and his prior poor performance as a law abiding citizen persuades the court that the only adequate punishment can be a lengthy commitment to a penal facility.
(6) Although he appears to be well able to do so, the defendant shows little, if any, inclination to seek out and hold any type of regular or steady employment in order to support three minor children.
(7) The defendant’s prior history of assault and violent behavior establishes a pattern of conduct that renders him a continuing and serious threat to this community and to every law abiding citizen.
Appellant seeks rehearing based on State v. Mischler, 488 So. 2d 523 (Fla.1986), in which the Florida Supreme Court listed three specific reasons mandating reversal if relied upon by the trial court as a basis for departure from the guidelines. Rousseau v. State, 489 So. 2d 828 (Fla. 1st DCA 1986); Fain v. State, 488 So. 2d 169 (Fla. 1st DCA 1986). We agree that at least two of the seven reasons for departure in this case fall within the categories established by Mischler as mandating reversal.
Reason number one is invalid because it relies on appellant’s prior record, a factor already taken into account in calculating the guidelines score. Mischler, 488 So. 2d at 525. Reason number four, that the offense for which this defendant was convicted (armed robbery) involved the use of a firearm, is invalid under Mischler because the possession of a firearm was already factored into the presumptive sentence. See also Bowdoin v. State, 464 So. 2d 596, 597 (Fla. 4th DCA 1985). As a result, reversal and remand for resentencing is required by Mischler. In Albritton v. State, 476 So. 2d 158 (Fla.1985), the Florida Supreme Court held that when a trial court cites as a basis for departing from sentencing guidelines reasons which are both valid and invalid, the state must prove beyond reasonable doubt that the absence of the invalid reasons would not have affected the sentence. The perception that the recommended range under the sentencing guidelines is not commensurate with the severity of the offenses is not a clear and convincing reason under Scurry v. State, 489 So. 2d 25, 29 (Fla.1986), as it merely reflects a trial judge’s disagreement with the Sentencing Guidelines Commission. Further, the trial court’s stated reason that the victim suffered profound emotional shock as indicated in the statement on the pre-sentence investigation is unsupported by the record since the pre-sentence investigation was not made part of the record for appellate review.
Consequently, regardless of reversal based on Mischler, we reverse and remand for resentencing under Albritton because there is reasonable doubt that the trial court would have rendered the same sentence in the absence of the invalid reasons.
REVERSED and REMANDED for re-sentencing. ZEHMER, J., concurs.
BARFIELD, J., concurs specially with an opinion.
BARFIELD, Judge,
concuring:
I concur in reversing and remanding the case on rehearing for resentencing. However, I do so not because of Mischler/Al-britton analysis but because my perception of the reason for departure expressed in separately numbered paragraphs by the trial judge may have too liberally interpreted the trial judge’s writing.
It appears that the trial judge could predicate departure on an application of the criteria set forth in section 775.084, Florida Statutes (1983). Hall v. State, 492 So. 2d 692 (Fla. 1st DCA 1986). Upon reflection, that analysis should not be read into/the trial judge’s decision, but should be left to the trial judge for an affirmative finding if that was his intention. Such a departure reason would have to meet with the precise requirements of the statute. Dean v. State, 493 So. 2d 1114 (Fla. 1st DCA 1986); Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985).
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Strawn v. State, 576 So. 2d 877 (Fla. 5th DCA 1991)…inherent components of armed robbery and cannot support departure. Reimel v. State, 532 So. 2d 16 (Fla. 5th DCA 1988); rev. denied, 542 So. 2d 989 (Fla.1989). Possession of a firearm is an inherent component of armed robbery. Burge [*879] v. State, 496 So. 2d 928 (Fla. 1st DCA 1986). Taking the property of another is also inherent in the crime of armed robbery. Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984), approved, 488 So. 2d 523 (Fla.1986). Inadequacy of the guidelines, the third reason for departu…
Authorities 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)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985)
- Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985)
- Fain v. State, 488 So. 2d 169 (Fla. 1st DCA 1986)
- Hall v. State, 492 So. 2d 692 (Fla. 1st DCA 1986)
- Rousseau v. State, 489 So. 2d 828 (Fla. 1st DCA 1986)
- Dean v. State, 493 So. 2d 1114 (Fla. 1st DCA 1986)