DONALD TANNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
The court held that the reasons given for departing upward from the sentencing guidelines were invalid and did not support the departure.
[1] An unprovoked, unjustified beating is an inherent element of the crime of aggravated battery or simple battery and cannot support a departure from sentencing guidelines.
[2] The viciousness of an attack is an inherent component of the "aggravated" element of a crime and cannot support a departure from sentencing guidelines.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of aggravated battery and battery after an assault. The trial court departed upward from the sentencing guidelines based o…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Upward Departure cases and more on FLexlaw
DANAHY, Chief Judge.
The appellant and a companion were driving on a public road behind a car that was alternately slowing down and speeding up. When the car pulled into a service station, the appellant and his companion followed them there, dragged them out of their car and beat them up, armed with a broken bottle. For his despicable and heinous act, the appellant was charged with two counts of aggravated battery. After trial by jury, the court adjudicated the appellant guilty of one count of aggravated battery and one count of the lesser included offense of battery. The court departed upward from the sentencing guidelines range giving the following reasons:
(1) unprovoked vicious attack on victims of aggravated battery;
(2) prior conviction for battery. An unprovoked, unjustified beating is an inherent element of the crime of aggravated battery or simple battery and therefore cannot support departure. See Casteel v. State, 498 So. 2d 1249 (Fla.1986). If any battery were provoked and found by the trier of fact to be justified, no conviction would have resulted because a valid defense would have been presented. Similarly, the viciousness of the attack is an inherent component of the “aggravated” element of the crime. A less vicious attack will result in a finding of simple battery, as happened here with the second count. This reason is not clear and convincing in order to support departure.
The second reason is clearly a violation of Hendrix v. State, 475 So. 2d 1218 (Fla.1985), since the prior conviction has already been factored into the presumptive sentence.
In our disposition of this case we heed the purposes and principles set out in the sentencing guidelines regarding neutrality with respect to race, gender, and social and economic status. Fla.R.Crim.P. 3.701(b)(1). Accordingly, finding neither reason valid, we vacate the appellant’s sentence and remand for resentencing within the presumptive range.
Convictions affirmed; sentence vacated and remanded.
FRANK and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Marshall v. State, 600 So. 2d 474 (Fla. 3d DCA 1992)…ttery by definition occurs where the defendant “in committing battery ... [ijntentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement....” Section 784.045(l)(a), Fla.Stat. (1985). See also Tanner v. State, 512 So. 2d 1158, 1159 (Fla. 2d DCA 1987). The maximum victim injury points were scored on the guidelines scoresheet. In the present case we need not decide whether the admittedly great bodily harm was “so extraordinary or egregious as to be beyond the ordinary cas…
-
Fields v. State, 520 So. 2d 661 (Fla. 4th DCA 1988)…alid reason where the offense is aggravated battery. Also see State v. Rousseau, 509 So. 2d 281 (Fla.1987). ■We also reject the trial court’s second reason for departure. See Gibson v. State, 509 So. 2d 1284 (Fla. 3d DCA 1987) and Tanner v. State, 512 So. 2d 1158 (Fla. 2d DCA 1987). Accordingly, we affirm appellant’s conviction and reverse the sentence imposed. We remand this case to the trial court with instructions to sentence appellant within the guidelines. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987).…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Casteel v. State, 498 So. 2d 1249 (Fla. 1986)