WILLIAM EDWIN LAMOND, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Lamond appeals his conviction and sentence for second degree murder. The appellate court finds his conviction arguments meritless but reverses his sentence because the trial court improperly departed from sentencing guidelines, relying on reasons that were either inherent components of the crime or otherwise invalid under recent Florida precedent.
The trial court improperly departed from the sentencing guidelines. All three reasons for departure were invalid: (1) excessive use of force cannot justify departure where death results from the conviction; (2) the victim's helplessness during the attack is not a valid departure reason; and (3) the cold, callous, cruel and heinous nature of the crime is an inherent component of second degree murder and cannot support departure.
[1] Excessive use of force cannot be a valid reason for a departure from sentencing guidelines when death is the result of the criminal act for which the defendant was convic…
[2] The absence of evidence of a struggle or victim awareness of an impending attack does not, in itself, render a killing excessively brutal for sentencing guideline departu…
Previewing 2 of 4 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“excessive use of force cannot be a valid reason for a departure where death is the result of the criminal act for which the defendant was convicted”
Establishes that the trial court's first reason for departure was invalid under Holden v. State
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLamond was convicted of second degree murder. The victim was stabbed seven times in the neck, with two wounds severing the jugular veins. The victim h…
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DAUKSCH, Judge.
This is an appeal from a judgment and sentence. Appellant was charged and convicted of second degree murder. Appellant presents three points on appeal. We find that the first two are without merit. The third point on appeal is with regard to the trial court’s departure from the sentencing guidelines. This point has merit and warrants a resentencing.
As his reasons for departure, the trial court listed the following:
1) Number of stab wounds (7 to the neck —2 which severed juglar [sic] veins— excessive injuries inflicted.
2) Victim had no defensive stab wounds, which indicates he was helpless during the stabbing. 3) Crimes were committed in a cold, callous, cruel and heinous nature.
Appellant correctly contends that under this court’s recent opinion in Holden v. State, 487 So. 2d 1199 (Fla. 5th DCA 1986), excessive use of force cannot be a valid reason for a departure where death is the result of the criminal act for which the defendant was convicted. In so holding, this court noted the fourth district’s findings in Hannah v. State, 480 So. 2d 718 (Fla. 4th DCA 1986), in which the fourth district held that the excessive use of force was an invalid reason for departure where the underlying conviction was for manslaughter with a firearm. Thus, under Holden and Hannah, the trial court’s first reason for departure is invalid.
Appellant correctly contends also that the trial court’s second reason for departure is also invalid. In Phelps v. State, 490 So. 2d 1284 (Fla. 5th DCA 1986), this court held that where there was no evidence of a struggle and no evidence that the victim was aware of her impending attack while she lay helpless in her bed, the defendant’s killing of his wife was not excessively brutal so as to warrant a departure from the sentencing guidelines. Additionally, in Williams v. State, 492 So. 2d 1308 (Fla.1986), the supreme court recently held the fact that the victim was stabbed while sleeping and therefore more vulnerable not to be a clear a convincing reason for departure. Thus, under Williams and Phelps, the trial court’s second reason for departure is invalid.
Finally, appellant correctly contends that the trial court’s third reason for departure is also invalid. This^ reason constitutes an inherent component of the statutory definition of second degree murder and as such may not support a departure sentence. Under State v. Mischler, 488 So. 2d 523 (Fla.1986), a reason based upon an inherent component of a crime with which the defendant is charged and convicted cannot stand as a valid reason for a departure. Thus, the trial court’s third reason for departure is also invalid.
Because each of the trial court’s reasons for departure are invalid, the case must be remanded for resentencing within the sentencing guidelines.
SENTENCE VACATED; REMANDED.
UPCHURCH, C.J., and COWART, J., concur.
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Citator
Cited By
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Harris v. State, 533 So. 2d 1187 (Fla. 2d DCA 1988)…minently dangerous to another and evincing a depraved mind regardless of human life,_” § 782.04(2), Florida Statutes (1987). Inherent components of a crime may not serve as a basis for departure; therefore, this reason cannot stand. Lamond v. State, 500 So. 2d 342 (Fla. 5th DCA 1986). The trial court’s second reason for departure was the age of the victim. Age is an unacceptable predicate for departure unless it is shown that the crime was achieved through the victim’s vulnerability stemming from either ten…
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Miranda v. State, 832 So. 2d 937 (Fla. 3d DCA 2002)…v. State, 584 So. 2d 78, 80 (Fla. 3d DCA 1991); Vara v. State, 546 So. 2d 1071 (Fla. 2d DCA 1989); Wright v. State, 538 So. 2d 497, 499 (Fla. 3d DCA 1989); Orange v. State, 535 So. 2d 691 (Fla. 3d DCA 1988). The defendant relies on Lamond v. State, 500 So. 2d 342 (Fla. 5th DCA 1986), [*941] but that case is not on point. In Lamond there was no evidence that the victim was aware of her impending attack. Id. at 343. In the present case, the evidence supports the proposition that the victim was awake, aware, an…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- F.Y. Scutti v. Daniel E. Adache & Assocs. Architects, P.A., 480 So. 2d 718 (Fla. 4th DCA 1986)
- Holden v. State, 487 So. 2d 1199 (Fla. 5th DCA 1986)
- Phelps v. State, 490 So. 2d 1284 (Fla. 5th DCA 1986)