DEVAUGHN L. HIGDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred in departing upward from sentencing guidelines based on three improper factors: the defendant's habitual offender status, the victim's status as a police officer (already an element of the crime), and speculative harm to bystanders from potential police action.
A trial court may not depart upward from sentencing guidelines based on habitual offender status, the victim's status as a police officer when that status is an element of the charged crime, or speculative harm to bystanders from potential police action.
[1] A trial court may not depart upward from sentencing guidelines based on factors that are elements of the charged offense or on speculative harm from potential police acti…
Previewing 1 of 1 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 hold a defendant responsible for what a police officer might do to injure someone, where no injury occurred and the situation was apparently defused in a reasonable fashion.”
Rejecting the trial court's justification for departure based on potential harm to bystanders from police action.
DeVaughn Higdon was sentenced above the guideline range for crimes including resisting an officer with violence. The trial court justified the departu…
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DAUKSCH, Judge.
This is an appeal from a guideline sentence departure. The trial court erred in sentencing appellant to a term greater than that recommended by the sentencing guidelines. The departure was based upon three factors. The first was because of appellant’s habitual offender status. That is improper under Whitehead v. State, 498 So. 2d 863 (Fla.1986). The second was because the victim was a police officer. That is improper because one of the crimes for which appellant was sentenced included an element of the crime that the victim is a police officer — resisting an officer with violence. The third was “Disregard for Safety of Innocent Bystander” because “there were other people in and around the bar who might have been injured had the Victim [police officer] fired his weapon in response to the Defendants [sic] threat.” We cannot hold a defendant responsible for what a police officer might do to injure someone, where no injury occurred and the situation was apparently defused in a reasonable fashion. There is no evidence that the defendant himself placed persons other than the officer in a dangerous situation.
The sentence is vacated and this cause remanded for sentencing within the guidelines.
SENTENCE VACATED; REMANDED.
COBB, J., and JOHNSON, W.C., Jr., Associate Judge, concur.
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)…1987) and cases cited therein. In the case before us, 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 t…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)