FERNANDO PELIER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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SCHWARTZ, Chief Judge.
Charged with attempted second degree murder, Pelier pled guilty after a plea negotiation to aggravated battery with a firearm. He was sentenced to a term in excess of the guidelines, which we reverse because neither of the grounds stated by the trial judge constitutes a cognizable basis for departure:
(a) That the “[defendant's actions show an utter disregard for human life” is impermissible both as inherent in the offense itself, see State v. Mischler, 488 So. 2d 523 (Fla.1986); Gibson v. State, 509 So. 2d 1284 (Fla. 3d DCA 1987) and because it is an element of the attempted murder charge which was reduced by the state. See Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986).
(b) That the facts of the case “evince a violent nature of this [d]efendant” so that the “guideline range would not be sufficiently long to constitute reasonable rehabilitation” is plainly insufficient. State v. Scott, 508 So. 2d 335 (Fla.1987).
Accordingly, the cause is remanded for resentencing within the guidelines.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Randolph v. State, 622 So. 2d 127 (Fla. 5th DCA 1993)…ree with the appellant that total disregard for human life, which was the trial court’s second departure reason, is not a valid basis to support this departure because disregard for human life is inherent in the instant offense. See Pelier v. State, 509 So. 2d 1276 (Fla.3d DCA 1987) (holding that utter disregard for human life was an invalid departure reason because, inter alia, it is inherent in the offense of aggravated battery with a firearm). However, we find that the court’s two other reasons are suffici…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Scott v. State, 508 So. 2d 335 (Fla. 1987)
- Ellerby v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986)
- Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986)
- Gibson v. State, 509 So. 2d 1284 (Fla. 3d DCA 1987)