MICHAEL RAY BULGER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Ray Bulger appealed his sentence of life imprisonment for second-degree murder and shooting into an occupied vehicle, which exceeded the recommended guidelines range of 17-22 years. The court reversed and remanded for resentencing because one of the trial court's two stated reasons for departure—that the defendant obtained a weapon and returned to seek confrontation—was invalid as it impermissibly suggested premeditation, which was negated by the conviction for second-degree murder rather than first-degree murder.
The court held that while the trial court validly cited the risk to public safety from firing a shotgun on a public highway as a reason to depart from guidelines, the second reason—that the defendant obtained a weapon and returned to seek confrontation—was invalid because it impermissibly suggested premeditation, a factor negated by the conviction for second-degree rather than first-degree murder. The court could not determine that the sentence would have been imposed based on the valid reason alone, so reversal and remand for resentencing were required.
[1] A defendant's act of obtaining a weapon and returning to the scene to seek further confrontation is an invalid reason for departing from a second-degree murder conviction…
[2] The rationale that a defendant obtained a weapon and returned to seek confrontation is applicable even when a second-degree murder conviction results from a plea.
Previewing 2 of 5 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“The second reason — that defendant left the scene to obtain the gun and returned to seek out the victim — is an invalid reason to depart from a conviction for second-degree murder. According to the Florida Supreme Court, such reason is tantamount to a finding of premeditation, a finding which is impliedly negated by the absence of a first-degree murder conviction.”
Establishes that premeditation cannot be used as a sentencing factor to depart from guidelines for second-degree murder because the conviction for that lesser charge impliedly negates premeditation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant and a friend had an altercation at the Green Frog nightclub with the victim and bouncer Michael Johnson. After leaving, appellant and his fr…
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[*1270] NIMMONS, Judge.
This is an appeal from a sentence exceeding the recommended guidelines range after a plea of nolo contendere to second-degree murder and shooting into an occupied vehicle. We reverse and remand for resentencing.
From the state’s recitation of facts upon the entry of the nolo plea, it appears that appellant and a friend of his had an encounter at the Green Frog nightclub with Michael Johnson (the club’s “bouncer”) and the victim as a result of the creation of a disturbance by the appellant and his friend. The appellant and his friend left and went to another friend’s home, obtained a shotgun and returned to the Green Frog in appellant’s truck. As the appellant drove by the Green Frog, Johnson and the victim got into Johnson’s Jeep in order to follow the appellant and get the tag number of the truck. Appellant made a U-turn and headed in the opposite direction. As appellant was passing the Jeep, appellant fired a single shot into the Jeep inflicting the fatal wound to the victim’s head. Johnson was also wounded. This incident occurred on a highway on which there was vehicular traffic and near which there was a bar, convenience store, motel and parking lot.
The trial court departed from the recommended sentencing guidelines range of 17-22 years, and sentenced the appellant to life imprisonment on the murder count and a term of 15 years on the other count. The following reasons were given:
1) The defendant’s crime posed an extreme risk to the physical safety of other citizens. The defendant fired the shotgun on a public highway, raising the prospect of innocent bystanders being wounded or causing a traffic accident which might have involved innocent third parties.
2) The facts of this case indicate that the Defendant and his Co-Defendant, following a confrontation with the victims, left the area, secured a weapon (a shotgun) and then returned to the area in search of further confrontation with the victims.
The first reason, risk to safety of others, has repeatedly been considered valid where supported by the record. E.G. Hannah v. State, 480 So. 2d 718 (Fla. 4th DCA 1986); Mathis v. State, 498 So. 2d 647 (Fla. 1st DCA 1986). Unnecessary risk of harm to others is supported by this record in this case.
The second reason — that defendant left the scene to obtain the gun and returned to seek out the victim — is an invalid reason to depart from a conviction for second-degree murder. According to the Florida Supreme Court, such reason is tantamount to a finding of premeditation, a finding which is impliedly negated by the absence of a first-degree murder conviction. Scurry v. State, 489 So. 2d 25 (Fla.1986) (defendant exonerated of premeditation by reason of verdict of lesser offense of second-degree murder). This rationale is applicable even where the second-degree murder conviction is the result of a plea, as in the instant case. Davis v. State, 489 So. 2d 754 (Fla. 1st DCA 1986).
Because we cannot find that the trial court would have imposed the same sentence with only the one valid reason for departure, pursuant to Albritton v. State, 476 So. 2d 158 (Fla.1985), we REVERSE and REMAND for resentencing.
SHIVERS and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davis v. State, 517 So. 2d 670 (Fla. 1987)…tes the proscription in Rule 3.701(d)(ll) against considering factors relating to an offense for which convictions were not obtained. See Scurry v. State, 489 So. 2d 25, 29 (Fla.1986). We concur with the analysis of Judge Nimmons in Bulger v. State, 509 So. 2d 1269, 1270 (Fla. 1st DCA 1987), that a finding of premeditation is “impliedly negated by the absence of a first-degree murder conviction. This rationale is applicable even where the second-degree murder conviction is the result of a plea, as in the insta…
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Bulger v. State, 537 So. 2d 672 (Fla. 1st DCA 1989)…confrontation with a weapon. On appeal, this court invalidated the second reason but found the first reason valid and supported by the record, and remanded for resentencing, pursuant to Albritton v. State, 476 So. 2d 158 (Fla.1985). Bulger v. State, 509 So. 2d 1269 (Fla. 1st DCA 1987). Upon remand and without conducting a hearing, the trial court entered an amended judgment and sentence, imposing the origi [*673] nal sentence. Bulger filed a motion to vacate and set aside the sentence and/or a motion to corre…
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Freer v. State, 514 So. 2d 1111 (Fla. 1st DCA 1987)…ed). Further, to the extent that this reason relies upon premeditation or planning on the part of the appellant, it is invalid. Premeditation is an invalid reason for departure where a defendant is convicted of second-degree murder. Bulger v. State, 509 So. 2d 1269 (Fla. 1st DCA 1987). At the sentencing hearing, the trial judge considered the second and third reasons together. This is evident from the judge’s comments at sentencing: Secondly, as a reason I think for departing is the manner in which this crim…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- F.Y. Scutti v. Daniel E. Adache & Assocs. Architects, P.A., 480 So. 2d 718 (Fla. 4th DCA 1986)
- Davis v. State, 489 So. 2d 754 (Fla. 1st DCA 1986)
- Mathis v. State, 498 So. 2d 647 (Fla. 1st DCA 1986)