LARRY CHRISTOPHER MCPHAUL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1986-11-07
Nos. 85-1183, 85-1182
LEHAN, A.C.J., and SANDERLIN, J., concur.
496 So. 2d 1009 Florida District Court of Appeal, Second District (1986)

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Synopsis

Larry Christopher McPhaul was convicted of first-degree murder, aggravated battery, armed robbery, and use of a firearm in a felony. The appellate court affirmed his convictions but reversed his sentences due to sentencing errors, including an erroneous 99-year murder sentence (which should be life without parole for 25 years) and improper judicial departure from sentencing guidelines based on invalid justifications.


Holding

The court affirmed McPhaul's convictions but reversed and remanded for resentencing. The 99-year murder sentence was erroneous and should be corrected to life imprisonment without possibility of parole for 25 years. The departure from sentencing guidelines was improper because most justifications cited by the trial court were invalid under sentencing law, and the court could not be convinced beyond a reasonable doubt that departure would have occurred absent those impermissible reasons.


Headnotes

[1] A trial court may not retain jurisdiction over a portion of a sentence for armed robbery.

[2] A first-degree murder sentence must be corrected to life in prison without parole for 25 years.

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Key Quotes

“The trial court erroneously sentenced the defendant to 99 years for murder and retained jurisdiction over one-third of the armed robbery sentence.”

Establishes the primary sentencing errors requiring reversal and remand.

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Facts & Procedural History

McPhaul was convicted of first-degree murder, aggravated battery, armed robbery, and use of a firearm during the commission of a felony. The trial cou…

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Opinion of the Court
FRANK, Judge.

FRANK, Judge.

The appellant, who was convicted of first degree murder, aggravated battery, armed robbery, and use of a firearm during the commission of a felony, has raised several issues on appeal, each of which has been considered; only one has merit. We affirm the appellant’s convictions but reverse and remand for resentencing.

The trial court erroneously sentenced the defendant to 99 years for murder and retained jurisdiction over one-third of the armed robbery sentence. The transcript reveals that the trial court later became aware of the errors and ordered that they be corrected. The corrections were apparently not made, however, because they are not reflected in the sentencing judgment. Upon remand, the first-degree murder sentence should be corrected to life in prison without possibility of parole for 25 years. Retention of jurisdiction over the armed robbery sentence should be stricken. McPhaul’s convictions for armed robbery, use of a firearm during the commission of a felony, and aggravated battery were scored pursuant to the guidelines; the resultant range was 5V2 to 7 years or 7 to 9 years depending upon which crime was scored as the primary offense. The trial court found the sentences “totally inadequate and ludicrous in light of the number and nature” of the appellant’s convictions and therefore exceeded the recommended range by imposing consecutive sentences of 99 years for armed robbery, 15 years for aggravated battery, and 5 years for use of a firearm.

The written order also reflects a number of inadequate bases for departure. The appellant’s probationary status justified only a one-cell increase in the guidelines’ score. The unnecessary use of a firearm during the robbery was an inherent component of the armed robbery offense. Similarly, the robbery plan created a risk to others and resulted, as the court stated, in the aggravated battery charge; therefore, this factor was improperly considered. See State v. Mischler, 488 So. 2d 523 (Fla.1986).

One reason relied upon by the court, however, is a valid basis for departure — that the defendant also stood convicted of first degree murder, a capital felony that could not be scored. Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); see also Wright v. State, 491 So. 2d 283 (Fla. 2d DCA 1986) (subsequent unscored conviction may form proper basis for departure). In light of the numerous invalid justifications employed by the trial court, however, we are not convinced beyond a reasonable doubt that departure from the guidelines would have occurred had the impermissible reasons not been considered. Albritton v. State, 476 So. 2d 158 (Fla.1985). Therefore, we reverse the appellant’s sentences and remand for resentencing.

LEHAN, A.C.J., and SANDERLIN, J., concur.


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