FREDERICK LEON MURRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frederick Murray appeals his sentencing guidelines departure following convictions for attempted first degree murder and armed robbery. The Florida appellate court affirmed the departure sentence, finding two valid reasons supported the trial court's decision to exceed standard sentencing guidelines.
The appellate court affirmed the sentencing departure, finding two valid reasons justified exceeding the guidelines: (1) the defendant's repeated use of excessive force in a vicious and malevolent manner, and (2) the commission of the offense approximately seven days after release from a youth development center.
[1] A sentencing departure is permissible when a defendant repeatedly uses excessive force in a vicious and malevolent manner during the commission of a crime.
[2] A sentencing departure is permissible when an offense is committed shortly after the defendant's release from a juvenile commitment facility.
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Join FLexlaw to unlock all legal intelligence“The Defendant repeatedly used excessive force in a vicious and malevolent manner.”
States the first valid reason for the sentencing departure based on the nature and brutality of the crime.
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Join FLexlaw to unlock all legal intelligenceMurray test drove a vehicle with a salesman and directed him to an orange grove under false pretenses. Once there, Murray pulled a revolver, ordered t…
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LEHAN, Judge.
This is an appeal from a sentencing guidelines departure following convictions of attempted first degree murder and armed robbery. We affirm the departure sentence based on the following two valid reasons given by the trial court.
1. The Defendant repeatedly used excessive force in a vicious and malevolent manner. While test driving a vehicle, the Defendant directed the salesman victim to drive to an orange grove where a relative was supposed to be working. After arriving in the grove, the Defendant pulled out a revolver and told the victim to stop the car and lay on the ground. Two or three shots were then fired at the victim’s head but he was not hit. The victim pleaded with the Defendant to let him go. The Defendant then took the victim’s wallet and shot him in the back of the head and walked back to the car. The victim attempted to get up, the Defendant went back over to the victim, made him lay on the ground again and fired another shot, hitting the victim in the hand when he raised his hand to protect his head. The Defendant again walked to the car, removed a lug wrench from the trunk, returned to the victim who was standing again and struck him several times in the head with the wrench. The victim tried to stand again and was again knocked to the ground by several blows of the wrench. The victim then laid motionless until the Defendant left. Medical costs to date have exceeded $7,400.00 and has involved three operations with more surgery anticipated.
2. The offense occurred approximately seven days after the Defendant was released from the Eckerd Youth Development Center where he had been committed by the juvenile court January 24, 1985.
As to reason number 1, see Francis v. State, 475 So. 2d 1366 (Fla. 2d DCA 1985), Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984). As to reason number 2, see Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986).
We believe that the state has shown beyond a reasonable doubt that the departure sentence would not have been affected by the absence of other, invalid reasons given by the trial court. See Albritton v. State, 476 So. 2d 158 (Fla.1985).
Affirmed.
RYDER, A.C.J., and SCHOONOVER, J., concur.
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Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988)…443, 444 (Fla. 1st DCA 1987); Jefferson v. State, 489 So. 2d 860 (Fla. 1st DCA 1986); Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985); Allen v. State, 522 So. 2d 850, 851 (Fla. 4th DCA), review denied, 518 So. 2d 1273 (Fla.1987); Murray v. State, 512 So. 2d 1136 (Fla. 2d DCA 1987). However, as a general rule, excessive use of force will not support departure when the force used resulted in victim injury and the extent of victim injury has been calculated in the guidelines. Mathis v. State, 515 So. 2d 214, 2…
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McKIRE v. State, 546 So. 2d 32 (Fla. 3d DCA 1989)…URIAM. Affirmed. See Smith v. State, 515 So. 2d 182 (Fla.1987), cert. denied, — U.S.-, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988); McFadden v. State, 529 So. 2d 351 (Fla. 1st DCA 1988); Sans v. State, 528 So. 2d 516 (Fla. 3d DCA 1988); Murray v. State, 512 So. 2d 1136 (Fla. 2d DCA 1987).…
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Aikens v. State, 822 So. 2d 562 (Fla. 3d DCA 2002)…or egregious” for a case of attempted first-degree premeditated murder. See Wright v. State, 538 So. 2d 497 (Fla. 3d DCA 1989); Bellamy v. State, 677 So. 2d 390 (Fla. 2d DCA 1996); Small v. State, 667 So. 2d 299 (Fla. 1st DCA 1995); Murray v. State, 512 So. 2d 1136 (Fla. 2d DCA 1987). The force used in this case was not beyond that inherent in the crime for which defendant was convicted. We remand for imposition of a guidelines sentence. Sentence reversed and remanded.…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986)
- Francis v. State, 475 So. 2d 1366 (Fla. 2d DCA 1985)