KENNETH SHAWN WILLIAMS APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Shawn Williams appealed his 17-year sentence, which departed significantly from the guideline range of 4.5 to 5.5 years. The court found that while some reasons for departure were valid, two were legally insufficient, requiring vacation and resentencing.
The court held that while an escalating course of criminal conduct, excessive use of violence, and the close proximity of crimes (crime spree) may be valid departure reasons, two of the trial court's stated reasons were invalid. An inherent element of the underlying crime cannot support departure, and the state must demonstrate beyond a reasonable doubt that invalid reasons did not affect the departure sentence.
[1] An escalating course of criminal conduct may be a valid reason for departure from sentencing guidelines, but must be supported by the record.
[2] The use of force, violence, assault, or putting in fear, which are inherent elements of the crime of robbery, cannot serve as a basis for departing from sentencing guidel…
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Join FLexlaw to unlock all legal intelligence“An inherent component of the crime for which a defendant is being sentenced cannot be used as a reason for departure.”
Establishes that statutory elements of the crime cannot serve as departure reasons
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Join FLexlaw to unlock all legal intelligenceWilliams had an active criminal history involving armed robberies and aggravated assaults with firearms. During one armed robbery, he subjected the vi…
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ORFINGER, Judge.
In departing from the recommended guidelines sentence of 4V2 to 5V2 years’ imprisonment and ordering that defendant be incarcerated for 17 years, the trial court relied on both valid and invalid reasons. We summarize and discuss the grounds given.
A. Escalating course of criminal conduct. While this has been held to be a valid reason for departure, Cawthon v. State, 486 So. 2d 90 (Fla. 5th DCA 1986); May v. State, 475 So. 2d 1004 (Fla. 5th DCA 1985), this finding must be supported by the record. Brown v. State, 483 So. 2d 857 (Fla. 5th DCA 1986). While defendant was quite active in his criminal career, all of the offenses referred to were of the same nature, armed robbery or aggravated assault with a firearm. Thus the record does not support the finding of an escalating course of criminal conduct and will not support departure.
B. While committing one of the armed robberies, defendant subjected the victim to violence and fear. The taking of money or property from a victim by “force, violence, assault or putting in fear” is an inherent element of the crime of robbery. § 812.13, Fla.Stat. (1985). An inherent component of the crime for which a defendant is being sentenced cannot be used as a reason for departure. Lerma v. State, 497 So. 2d 736 (Fla.1986); State v. Cote, 487 So. 2d 1039 (Fla.1986). This reason is invalid.
C. Excessive use of violence by choking the victim and “partially strangling her.” The excessive use of force or violence may be a valid reason for departure. Lerma; Williams v. State, 492 So. 2d 1171 (Fla. 5th DCA 1986). Additionally, victim injury is not an inherent component of the crime of robbery, Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986); Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985); Brown v. State, 474 So. 2d 346 (Fla. 1st DCA 1985), and thus may serve as a valid reason for departure. Self v. State, 487 So. 2d 391 (Fla. 1st DCA 1986).
D. Close proximity of the various crimes, some of which occurred while defendant was on bond for earlier crimes for which he was subsequently convicted and for which he was now being sentenced (crime spree). This court has held that the timing of the offenses for which appellant is being sentenced may be a valid reason for departure. Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1986). See also Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984); Fleming v. State, 456 So. 2d 1300 (Fla. 2d DCA 1984). The record supports this reason.
Because two of the reasons given are invalid and because the State has not demonstrated beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence, we must vacate the sentence and remand the case for resentencing. Albrit-ton v. State, 476 So. 2d 158 (Fla.1985).
SENTENCE VACATED, REMANDED.
DAUKSCH and COWART, JJ., concur.
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Mathis v. State, 515 So. 2d 214 (Fla. 1987)…es. viewing it as an aggravating circumstance within the meaning of Fla.R.Crim.P. 3.701(b)(3) ("penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense”). See Williams v. State, 500 So. 2d 604 (Fla. 5th DCA 1986); Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984). See also Stewart v. State, 489 So. 2d 176 (Fla. 1st DCA 1986) (use of viol…
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COX v. State, 508 So. 2d 1318 (Fla. 1st DCA 1987)…gravated assault, all within a six month period. A number of the crimes for which Paschall was being sentenced were committed after he had been released on bond subsequent to his arrest for several of the other crimes. Although in Williams v. State, 500 So. 2d 604 (Fla. 5th DCA 1987) no reference was made to the actual number of crimes committed, the Williams court did refer to the defendant’s “quite active” criminal career involving armed robberies and aggravated assaults using a firearm, to the “close proxi…
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Perez v. State, 604 So. 2d 916 (Fla. 3d DCA 1992)…ing reason to impose a 20 year sentence in this matter and that this clear and convincing reason for departure has been proven beyond and to the exclusion of every reasonable doubt. Hansbrough v. State, 509 So. 2d 1081 (Fla.1987); Williams v. State, 500 So. 2d 604 (Fla. 5th DCA 1986). The first reason stated by the trial court was “the age of the victim, Sandra Berrocal, as well as the trauma of seeing her mother assaulted and robbed within their own home.... ” In Sans v. State, 528 So. 2d 516 (Fla. 3d DCA 1…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Bernie I. Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985)
- Fleming v. State, 456 So. 2d 1300 (Fla. 2d DCA 1984)
- Elvin Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986)
- MAY v. State, 475 So. 2d 1004 (Fla. 5th DCA 1985)
- Rodrigue v. State, 481 So. 2d 24 (Fla. 5th DCA 1985)