ROBERT RACKLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
STONE, Judge.
Pleading guilty to second degree murder, defendant was sentenced, in aggravation of the guidelines, to life in prison.
The defendant was sitting in the front seat of an automobile next to his wife when he shot the victim, who was seated in the rear. The defendant then left the vehicle and shot the victim again. It is undisputed that the basis for aggravating the sentence was the risk of harm to the defendant’s wife or unknown others. There is no direct evidence that the passenger, or any one else, was ever at or near the line of fire, or otherwise endangered by the method of firing. We recognize that there may be other circumstances in which endangerment of a co-passenger might warrant aggravation of a sentence. Absent speculation, the proof here was insufficient to meet the standard. See Scurry v. State, 489 So. 2d 25 (Fla.1986); State v. Mischler, 488 So. 2d 523, 525 (Fla.1986).
We therefore vacate the sentence and remand for resentencing.
DELL and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Durham v. State, 512 So. 2d 283 (Fla. 3d DCA 1987)…mand the cause for resentencing within the guidelines’ range [*284] of 17 to 22 years. See Scurry v. State, 489 So. 2d 25 (Fla.1986); State v. Mischler, 488 So. 2d 523 (Fla.1986); McCray v. State, 503 So. 2d 995 (Fla. 3d DCA 1987); Rackley v. State, 501 So. 2d 175 (Fla. 4th DCA 1987). Affirmed in part; reversed in part and remanded.…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)