BRET MCCAMMON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant McCammon was convicted of manslaughter and sentenced to twelve years, exceeding the presumptive guideline range of three to seven years. The appellate court reversed the sentence, holding that the trial court failed to provide clear and convincing reasons for departure from the sentencing guidelines.
The trial court departed from the presumptive guidelines sentence without stating clear and convincing reasons, and the sentence is reversed and remanded for resentencing within the guidelines unless valid reasons for departure are sufficiently articulated. Reason 1 (firearm use) is invalid because the jury did not convict of a crime necessarily involving a firearm. Reason 2 may be valid but is insufficiently articulated. Reason 3 is merely a conclusion, not a valid reason.
[1] A trial court may not depart from the presumptive sentencing guidelines based on a factor relating to an offense for which a conviction has not been obtained.
[2] A trial court's justification for departing from presumptive sentencing guidelines must be sufficiently articulated and supported by the record.
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“Because the jury neither convicted him of a crime necessarily involving the use of a firearm nor entered a special verdict indicating such use, the reference to a firearm is a factor relating to the instant offense for which a conviction has not been obtained.”
Establishes that departure reasons cannot be based on aspects of a charged crime for which the defendant was not convicted
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Join FLexlaw to unlock all legal intelligenceMcCammon was charged with second degree murder with a firearm. The jury convicted him of manslaughter. The trial court sentenced him to twelve years i…
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RYDER, Acting Chief Judge.
Appellant was charged with second degree murder with a firearm. The jury returned a verdict of guilty of manslaughter. The trial court entered a judgment of guilt and departed from the recommended presumptive sentence of three to seven years’ incarceration by sentencing appellant to twelve years’ imprisonment. The trial court gave the following three reasons for departure:
1. The defendant committed the crime of manslaughter, by using a firearm.
2. The manner in which the defendant pointed and discharged a loaded weapon in a public parking lot when he knew that numerous innocent people were within striking range of that weapon, and when he knew that he was in no immediate danger of physical harm to himself shows that the defendant knowingly created an extreme and totally unreasonable risk of injury or death to the many people who were in the immediate area.
3. A sentence within the recommended range of three to seven years is woefully inadequate to deter others from committing a similar act.
Appellant appeals the trial court’s departure from the presumptive guidelines range.
Reason # 1 is invalid. Although appellant was charged with second degree murder with a firearm, the jury convicted him only of manslaughter. Because the jury neither convicted him of a crime necessarily involving the use of a firearm nor entered a special verdict indicating such use, the reference to a firearm is a factor relating to the instant offense for which a conviction has not been obtained. State v. Tyner, 506 So. 2d 405 (Fla.1987); Dawkins v. State, 487 So. 2d 63 (Fla. 2d DCA 1986).
Reason # 2 may be valid but is not sufficiently articulated. This type of reason has been held valid when supported by the record. Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984).
Reason #3 is not a “reason,” but merely a conclusion by the trial judge that departure is justified. Scott v. State, 508 So. 2d 335 (Fla.1987).
We hold the trial court departed from the presumptive guidelines sentence without stating clear and convincing reasons. We reverse and remand for resentencing within the guidelines unless valid reasons for departure are sufficiently articulated.
We have considered appellant’s second point on appeal and find it to be without merit. Appellant argued that the trial court at sentencing was influenced by evidence of an unrelated incident, as was the trial court in Epprecht v. State, 488 So. 2d 129 (Fla. 3d DCA 1986). Unlike the record in Epprecht, there is nothing in the record in the instant case to indicate that the trial court impermissibly considered evidence of an unrelated incident in sentencing appellant.
Affirmed in part; reversed in part and remanded for resentencing.
CAMPBELL and SCHOONOVER, JJ., concur.
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Citator
Cited By
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Genaro Muniz Vara v. State, 546 So. 2d 1071 (Fla. 2d DCA 1989)…can be a valid reason for departure if sufficiently articulated and supported beyond a reasonable doubt in the record. Green v. State, 545 So. 2d 359 (Fla. 2d DCA 1989); Staten v. State, 500 So. 2d 297 (Fla. 2d DCA 1986); see also McCammon v. State, 510 So. 2d 657 (Fla. 2d DCA 1987); cf. Raulerson v. State, 420 So. 2d 567 (Fla.1982) cert. denied 463 U.S. 1229, 103 S.Ct. 3572, 77 L.Ed.2d 1412, reh’g denied, 463 U.S. 1249,104 S.Ct. 38, 77 L.Ed.2d 1457 (1983) (statutory aggravating circumstance in death penalty…
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Keeton v. State, 525 So. 2d 912 (Fla. 2d DCA 1988)…‘Clear and convincing reasons’ require that the facts supporting the reasons be credible and proven beyond a reasonable doubt.” State v. Mischler, 488 So. 2d 523 (Fla.1986). Reasons for departure must be sufficiently articulated. McCammon v. State, 510 So. 2d 657 (Fla. 2d DCA 1987). Merely by stating “the circumstances surrounding the case” and leaving the appellate court to determine what the circumstances are is an insufficient reason for departure. Appellant, relying on Vanover v. State, 498 So. 2d 899 (…
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Luc Quy Tran v. State, 667 So. 2d 812 (Fla. 2d DCA 1995)…ry’s acquittal as to that charge necessarily foreclosed the trial court from considering appellant’s role in the robbery as a factor justifying an upward departure sentence. See Widner v. State, 520 So. 2d 676 (Fla. 1st DCA 1988); McCammon v. State, 510 So. 2d 657 (Fla. 2d DCA 1987). We conclude, therefore, that the trial court im-permissibly relied on an aspect of appellant’s conduct in this criminal episode for which he was neither charged nor convicted. Aside from this deficiency, we also conclude that no…
Authorities Cited
- Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984)
- Scott v. State, 508 So. 2d 335 (Fla. 1987)
- State v. Tyner, 506 So. 2d 405 (Fla. 1987)
- Eladio T. Elizagarate v. State, 488 So. 2d 129 (Fla. 3d DCA 1986)
- Epprecht v. State, 488 So. 2d 129 (Fla. 3d DCA 1986)
- Dawkins v. State, 487 So. 2d 63 (Fla. 2d DCA 1986)