JAMES CLARENCE MCCRAY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the defendant's convictions for armed burglary, attempted armed robbery, and attempted sexual battery, but reversed the sentences imposed. The court found that while a prosecutor's remark during closing arguments might have been improper, it was harmless given the strong evidence of guilt. However, the trial court's departure from sentencing guidelines was not permissible based on the reasons provided.
The court held that the prosecutor's remark, even if improper, was harmless error given the overwhelming evidence of guilt. The court also held that the reasons provided for departing from the sentencing guidelines were not permissible.
[1] A prosecutor's improper remark in closing argument may be deemed harmless error when there is overwhelming evidence of guilt.
[2] A trial court may not depart from sentencing guidelines based on factors that are normally associated with the types of crimes for which a defendant has been convicted.
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“given the overwhelming evidence of guilt in this case, we conclude that the prosecutor’s remark in closing argument, even if improper, was entirely harmless and did not merit a mistrial.”
This quote explains the court's reasoning for not granting a mistrial.
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Join FLexlaw to unlock all legal intelligenceJames Clarence McCray was convicted by a jury on charges of armed burglary, attempted armed robbery, and attempted sexual battery. He appealed, arguin…
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PER CURIAM.
This is an appeal by the defendant James Clarence McCray from judgments of conviction and sentences for (1) armed burglary of a structure wherein an assault occurred [§ 810.02(2), Fla.Stat. (1985)]; (2) attempted armed robbery [§§ 777.04(1), (4)(b), 812.13(2)(a), Fla.Stat. (1985) ]; and (3) attempted armed sexual battery [§§ 777.-04(1), (4)(b), 794.011(3), Fla.Stat. (1985)], which were entered upon adverse jury verdicts returned below. The defendant McCray raises two points on appeal: (1) the trial court committed reversible error in denying a defense motion for mistrial based on an alleged improper remark of the prosecuting attorney in his final argument to the jury, and (2) the trial court erred in departing from the sentencing guidelines in this case.
We affirm the judgments of conviction but reverse the sentences. First, given the overwhelming evidence of guilt in this case, we conclude that the prosecutor’s remark in closing argument, even if improper, was entirely harmless and did not merit a mistrial. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983), pet. for review denied, 447 So. 2d 888 (Fla.1984); Lane v. State, 352 So. 2d 1237 (Fla. 1st DCA 1977), cert. denied, 362 So. 2d 1054 (Fla.1978); Arline v. State, 303 So. 2d 37 (Fla. 1st DCA 1974).
Second, the reasons given for departing from the sentencing guidelines — which center around the factors of the helplessness and traumatization of the victims — do not constitute a permissible basis for departure since these factors are no different in this case from those normally associated with the types of crimes for which the defendant stands convicted. Vanover v. State, 498 So. 2d 899 (Fla.1986); Lerma v. State, 497 So. 2d 736 (Fla.1986); Leon v. State, 498 So. 2d 680 (Fla. 3d DCA 1986).
The final judgments under review are affirmed; the sentences under review are reversed and the cause is remanded to the trial court with directions to sentence the defendant within the sentencing guidelines.
Affirmed in part; reversed in part and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lumpkin v. State, 510 So. 2d 1164 (Fla. 3d DCA 1987)…namely, psychological trauma to the victims, is also not a valid reason for departure unless the trauma results from extraordinary circumstances not normally accompanying the crime, State v. Rousseau, 509 So. 2d 281, 284 (Fla.1987); McCray v. State, 503 So. 2d 995 (Fla. 3d DCA 1987), or “the victim has a discernible physical manifestation resulting from the psychological trauma.” Rousseau, 509 So. 2d at 284 (Fla.1987); see State v. Cote, 487 So. 2d 1039 (Fla.1986); Tompkins v. State, 483 So. 2d 115 (Fla. 2d D…
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Williams v. State, 550 So. 2d 28 (Fla. 3d DCA 1989)…ind there was overwhelming evidence of guilt in this case, as established by the testimony of the victim, who positively identified the appellant as the perpetrator of the offenses. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); McCray v. State, 503 So. 2d 995 (Fla. 3d DCA 1987). A similar comment was made by the prosecutor in Pope v. Wainwright, 496 So. 2d at 802. The Florida Supreme Court stated: At first blush, the petitioner’s cumulative impact argument may appear very persuasive; however, after rev…
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Durham v. State, 512 So. 2d 283 (Fla. 3d DCA 1987)…verse, however, the departure sentence imposed and remand 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. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- Creed Martin Vanover v. State, 498 So. 2d 899 (Fla. 1986)
- Fidel Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983)
- Arline v. State, 303 So. 2d 37 (Fla. 1st DCA 1974)
- Sainer Constructors, Inc. v. Gen. Elec. Co., 352 So. 2d 1237 (Fla. 2d DCA 1977)
- Maddox v. Caminez, 498 So. 2d 680 (Fla. 1st DCA 1986)