RAYMOND C. TAPIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1987-06-03
No. 86-885
SCHEB, A.C.J., and CAMPBELL, J., concur.
509 So. 2d 354 Florida District Court of Appeal, Second District (1987) Positive Treatment
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Raymond Tapia appeals his convictions for second degree murder and attempted first degree murder, challenging the trial court's sentencing departure from guidelines. The appellate court affirmed all convictions but remanded for resentencing, finding the trial court's reasons for departing from sentencing guidelines invalid.


Holding

The trial court erred in departing from the sentencing guidelines. The first reason—that the convictions resulted from a contract killing—was invalid because it was based on premeditation, which is already an element of attempted first degree murder. The second reason—failure of previous rehabilitation attempts—was invalid because it was based on criminal history already factored into the guidelines and did not show an escalating pattern of criminality.


Headnotes

[1] A trial court may not depart from sentencing guidelines based on premeditation when premeditation is an element of the offense for which the defendant is being sentenced.

[2] A defendant's status of being on probation, standing alone, only allows a trial court to enhance a presumptive sentence by one cell.

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Key Quotes

“The trial court's first reason is invalid because it appears to be based on premeditation. Premeditation is an element of attempted first degree murder.”

Establishes that the trial court cannot use an element of the offense as a reason to depart from guidelines

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Facts & Procedural History

Tapia, while on probation for second degree grand theft and possession of a counterfeit title, was charged with first degree murder and attempted firs…

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Opinion of the Court
SCHOONOVER, Judge.

SCHOONOVER, Judge.

Appellant, Raymond Tapia, appeals from the judgments and sentences imposed upon him after he was found guilty of the offenses of second degree murder and attempted first degree murder. We affirm all of the convictions but remand for resentencing.

Appellant, while on probation for the offenses of second degree grand theft and possession of a counterfeit title, was charged with first degree murder and attempted first degree murder. A jury trial resulted in verdicts finding him guilty of second degree murder and attempted first degree murder. Based upon these verdicts, the trial court revoked appellant’s probation and adjudicated him guilty of all four offenses. A guidelines scoresheet prepared for sentencing indicated a sentence range of between seventeen and twenty-two years of imprisonment with a presumptive sentence of twenty years. The trial court departed from the presumptive sentence and imposed four consecutive sentences of imprisonment upon appellant: five years for second degree grand theft, five years for possession of a counterfeit title, fifty years for second degree murder, and thirty years for attempted first degree murder. The court entered a written order setting forth two reasons for imposing the departure sentence. At the conclusion of the sentencing hearing, appellant filed a notice of appeal.

After considering the briefs, record on appeal, and argument of counsel, we find no reversible error in the trial proceedings and, accordingly, affirm appellant’s convictions. We do, however, find merit in appellant’s contention that the trial court erred in departing from the guidelines in sentencing him. In its written order, the trial court gave the following reasons for its departure:

1. Said Guideline Sentence does not take into consideration that said Defendant’s convictions for Second Degree Murder of Carlos Santana and Attempted First Degree Murder of Jose Sosa resulted from an initially conceived CONTRACT KILLING wherein said Defendant, while on probation for Grand Theft Second Degree and Possession of Counterfeit Title, hired Joe Rodriguez to commit Murder in the First Degree of Jose Sosa.

2. Failure of previous attempts to rehabilitate said Defendant.

The trial court’s first reason is invalid because it appears to be based on premeditation. Premeditation is an element of attempted first degree murder. §§ 777.04, 782.04, Fla.Stat. (1985). The trial court’s statement that appellant’s convictions resulted from his hiring Rodriguez to commit murder in the first degree on Sosa, therefore, cannot justify the departure sentence imposed. See State v. Mischler, 488 So. 2d 523 (Fla.1986). The fact that appellant was on probation, standing alone, would only allow the trial court to enhance appellant’s presumptive sentence by one cell. Fla.R.Crim.P. 3.701(d)(14).

The failure of previous attempts to rehabilitate appellant is also an invalid reason to depart from the guidelines in this case. A defendant’s dim prospect for rehabilitation is not a valid reason for departure where that ground is based on a defendant’s criminal history which has already been factored into the guidelines. Washington v. State, 501 So. 2d 133 (Fla.2d DCA 1987). Although we have held that failure to rehabilitate is a valid reason to depart when coupled with behavior evidencing an escalating pattern of criminality, see Washington; Booker v. State, 482 So. 2d 414 (Fla.2d DCA 1985), appellant’s behavior in this case does not fit into that pattern.

We, accordingly,, remand for resentencing within the guidelines. We affirm in all other respects.

Affirmed in part, reversed in part, and remanded with instructions.

SCHEB, A.C.J., and CAMPBELL, J., concur.


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Citator

Cited By

  • Rommell Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988)
    …1300 (Fla. 3d DCA 1987); and the defendant’s lack of amenability to rehabilitation, see Ruiz v. State, 516 So. 2d 1057 (Fla. 3d DCA 1987), review denied, 525 So. 2d 880 (Fla.1988); Bogan v. State, 528 So. 2d 1341 (Fla. 3d DCA 1988); Tapia v. State, 509 So. 2d 354 (Fla. 2d DCA 1987); cf. Braggs v. State, [*655] 522 So. 2d 536 (Fla. 3d DCA 1988) — were invalid, and we are not convinced that the trial court would have departed from the guidelines based only on the valid reasons.4, 5 Affirmed in part, reversed…
  • Louissaint v. State, 576 So. 2d 316 (Fla. 5th DCA 1990)
    …ation. Non-amenability to rehabilitation is not a valid reason for departure when the determination is based on a prior record which has been computed into the guideline sentence. Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990); Tapia v. State, 509 So. 2d 354 (Fla. 2d DCA 1987). Here, while the court did not determine non-amenability merely because the defendant committed three felonies in a short period of time (all scored), but rather emphasized that the proof of non-amenability was that the present of…
  • Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990)
    …ground was a determination that the appellant is “no longer amendable to rehabilitation.” This ground also fails; failure to rehabilitate is invalid when based upon a prior record which has been computed into the guidelines sentence. Tapia v. State, 509 So. 2d 354 (Fla. 2d DCA 1987). Finally, at the time the appellant committed the offense, November 1987, sentencing pursuant to the habitual offender statute was available only in the circumstance where the guidelines sentence exceeded the maximum statutory pe…

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