MIGUEL GOMEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Miguel Gomez appeals his sentences for attempted burglary of a conveyance, aggravated assault with a deadly weapon, and possession of burglary tools, challenging the trial court's departure from sentencing guidelines. The appellate court reverses and remands for resentencing because the reasons given for departure merely cite factors already included in the guidelines.
The trial court impermissibly departed from sentencing guidelines because neither its stated reasons nor the record presented clear and convincing grounds for departure, as the reasons cited factors already included in the recommended guidelines sentence.
[1] A trial court may depart from sentencing guidelines only upon clear and convincing grounds not already included in the recommended guidelines sentence.
[2] Firing a weapon in the general direction of a victim and bystanders in a public place can constitute creating an extreme risk to physical safety, justifying a departure f…
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Join FLexlaw to unlock all legal intelligence“Neither the trial court's stated reasons, which cite factors already included in the recommended guidelines sentence, nor the record presents clear and convincing grounds for departure.”
Establishes the core holding that the trial court's departure reasons were impermissible because they reiterated factors already in the guidelines.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGomez attempted to burglarize a vehicle in a busy shopping mall parking lot. When discovered by the victim, Ira Fox, Gomez ran to his own car, retriev…
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PER CURIAM.
Following his convictions for attempted burglary of a conveyance, aggravated assault with a deadly weapon, and possession of burglary tools, appellant Miguel Gomez challenges his sentences, contending that the trial court impermissibly departed from sentencing guidelines. The court gave the following reasons for departure:
a. The defendant, Miguel Gomez, created an extreme risk to the physical safety of the victim, Ira Fox, and innocent bystanders who were present in a busy public parking lot when he fired a revolver in the general direction of the victim
b. The defendant, Miguel Gomez, used excessive and unnecessary force in attempting to burglarize a vehicle when, after he was discovered, he ran to his own car, reached in and produced a revolver and shot in the general direction of an unarmed, innocent victim who was attempting to stop the defendant from burglarizing the vehicle. The court finds that this defendant could have easily and safely escaped in his own vehicle, as he did anyway, without the resort to firing a gun at this individual. This excessive force unnecessarily endangered the life of the intended victim as well as those lives of several innocent bystanders who were present in the public parking lot at a busy shopping mall where this crime took place. (Citations omitted.)
c. The defendant, Miguel Gomez, has a prior misdemeanor conviction for carrying a concealed weapon. It is clear that the defendant’s conduct in the instant cause represents an escalating pattern of more severe, and dangerous criminal activity on his part. (Citations omitted.)
d. The recommended guidelines sentence of any non-state prison sanction fails to provide appropriate retribution, deterence [sic] or rehabilitation based on the facts of this case and the defendant’s prior record. (Citations omitted.)
Neither the trial court’s stated reasons, which cite factors already included in the recommended guidelines sentence, nor the record presents clear and convincing grounds for departure. State v. Mischler, 488 So. 2d 523 (Fla.1986); Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Flemmings v. State, 476 So. 2d 292 (Fla. 3d DCA 1985); Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985), approved, 483 So. 2d 423 (Fla.1986).
Reversed and remanded for resentencing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vidal v. State, 518 So. 2d 939 (Fla. 3d DCA 1987)…s, however, the record contains no evidence to support the state’s assertion that defendant created a risk to bystanders. See Whitfield v. State, 505 So. 2d 360 (Fla. 4th DCA 1987); Higdon v. State, 499 So. 2d 32 (Fla. 5th DCA 1986); Gomez v. State, 498 So. 2d 636 (Fla. 3d DCA 1986). The final reason, “psychological trauma to the victims,” is a permissible basis for upward departure only if the trauma arises from extraordinary circumstances not inherent in the charged crime, Ochoa v. State, 509 So. 2d 1115 (F…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)
- State v. Terence A. Baker, 483 So. 2d 423 (Fla. 1986)
- Flemmings v. State, 476 So. 2d 292 (Fla. 3d DCA 1985)