THOMAS FLOYD MASH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Floyd Mash appeals a ten-year sentence imposed as a departure above the recommended guideline range of 3.5 to 4.5 years for armed robbery with kidnapping. The court reverses and remands for resentencing, finding all three reasons given by the trial court for the departure invalid under Florida sentencing guidelines.
The court held that all three reasons for departure were invalid. The use of a dangerous weapon is an essential element of armed robbery already factored into guidelines; wearing a mask was not a basis for conviction; victim removal is an inherent element of the kidnapping charge; psychological trauma is either an inherent component of the crime or not proven to be unusual in this case; and general references to retribution, rehabilitation, and deterrence are insufficient to support departure.
[1] A trial court may not depart from recommended guideline sentences based on factors that are essential elements of the offense for which the defendant was convicted.
[2] A trial court may not depart from recommended guideline sentences based on facts that are inherent elements of a crime, such as the removal of a victim from the scene in…
Previewing 2 of 6 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“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.”
Establishes that weapon use cannot serve as a basis for sentencing departure because it is already incorporated in the guideline calculation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMash committed armed robbery using a knife, a mask, and removed the victim from the scene. The victim suffered psychological trauma, reporting nightma…
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SHIVERS, Judge.
The appellant in this case, Thomas Floyd Mash, appeals the trial court’s departure from the recommended guideline sentence of 3V2 to 4½ years incarceration. Upon the state’s motion for departure the court imposed a sentence of ten years, giving the following written reasons for departure:
(a) The circumstances of the offense, including the use of a knife, a mask, and removal of the victim from the scene, warrant a sentence in excess of 4V2 years.
(b) The psychological impact on the victim, who stated at the time of the presen-tence investigation that she was still having nightmares several months after the incident, is an aggravating factor warranting a sentence in excess of 4½ years.
(c) The recommended guidelines sentence is insufficient to elicit the requisite amount of retribution, rehabilitation and deterrence necessitated by defendant’s actions.
We find all three reasons to be invalid and reverse and remand for resentencing. 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 876.155(4), Florida Statutes, the use of this reason violates Florida Rule of Criminal Procedure 3.701(d)(ll). Third, the use of the victim’s removal from the scene as a reason for departure is also invalid under the Hendrix case since it is an inherent element of the kidnapping in this case.
Reason #2 is also invalid. Psychological trauma may constitute a valid reason for departure where it is not an inherent component of a crime, State v. Cote, 487 So. 2d 1039 (Fla.1986), and where the facts supporting the reasons are credible and proven beyond a reasonable doubt. Hankey v. State, 485 So. 2d 827 (Fla.1986). The second and fourth districts have specifically found emotional trauma to be an inherent component of the crime of armed robbery and, thus, an invalid reason for departure. See Grant v. State, (Fla. 4th DCA 1986), opinion filed October 1,1986 [11 FLW 2084]; Campos v. State, 488 So. 2d 677 (Fla. 4th DCA 1986); Williamson v. State, 496 So. 2d 886 (Fla. 2d DCA 1986). The third district, on the other hand, has found psychological .trauma not to be an inherent component of kidnapping, robbery, or sexual battery. Sias v. State, 487 So. 2d 1180 (Fla. 3d DCA 1986). Regardless of whether psychological trauma is or is not an inherent component of armed robbery, the evidence in this case does not indicate that the victim suffered such unusual trauma as would support a departure.
Reason #3 has specifically been found invalid by this court in Williams v. State, 492 So. 2d 1388 (Fla. 1st DCA 1986). See also Scurry v. State, 489 So. 2d 25 (Fla.1986).
Accordingly, appellant’s sentence is reversed and this case is remanded to the trial court for resentencing.
MILLS and JOANOS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vaughn R. Simpson v. State, 505 So. 2d 1378 (Fla. 1st DCA 1987)…ting in this case because the victim’s trauma was greater than that usually associated with a simple robbery). But see Sias v. State, 487 So. 2d 1180 (Fla. 3d DCA 1986) (psychological trauma not an inherent component of robbery). •In Mash v. State, 499 So. 2d 35 (Fla. 1st DCA 1986), this court did not reach the issue of whether emotional or psychological trauma is an inherent component of armed robbery. The court, noting the conflict among the districts, instead stated, “Regardless of whether psychological…
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Vaughn R. Simpson v. State, 502 So. 2d 61 (Fla. 1st DCA 1987)…he crime of armed robbery; therefore, reason 4 is invalid. See Grant v. State, 11 F.L.W. 2084 (Fla. 4th DCA 1986); Campos v. State, 488 So. 2d 677 (Fla. 4th DCA 1986); William [*63] son v. State, 496 So. 2d 886 (Fla. 2d DCA 1986). Cf. Mash v. State, 499 So. 2d 35 (Fla. 1st DCA 1986); Sias v. State, 487 So. 2d 1180 (Fla. 3d DCA 1986). Reason 5, that defendant “threatened and shot victims during both robberies,” is based on an inherent component of a crime in question, attempted first degree murder, and there…
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Strawn v. State, 576 So. 2d 877 (Fla. 5th DCA 1991)…son where the defendant has not been convicted of use of a firearm, use of mask is an invalid reason to depart where the defendant has not been convicted of using a mask. See Jennings v. State, 498 So. 2d 1373 (Fla. 1st DCA 1986), and Mash v. State, 499 So. 2d 35 (Fla. 1st DCA 1986). It is improper to base a departure on factors relating to an offense for which convictions are not obtained. Tyner v. State, 506 So. 2d 405 (Fla.1987); Whitfield v. State, supra. Since none of the departure reasons was valid, w…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Hankey v. State, 485 So. 2d 827 (Fla. 1986)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986)
- Campos v. State, 488 So. 2d 677 (Fla. 4th DCA 1986)
- Sias v. State, 487 So. 2d 1180 (Fla. 3d DCA 1986)
- Kimbler v. State, 496 So. 2d 886 (Fla. 1st DCA 1986)
- Williams v. State, 492 So. 2d 1388 (Fla. 1st DCA 1986)