BILLY JOE BLANKENSHIP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Joe Blankenship was convicted of second-degree murder and attempted first-degree murder and sentenced to 27 years (departing upward from the guideline range of 17-22 years). The trial court justified the upward departure based on the extraordinary circumstance that Blankenship shot an eyewitness to eliminate him as a witness. The appellate court affirmed, holding that eliminating a witness constitutes a valid aggravating factor to enhance a guideline sentence.
The motive to eliminate a witness to a crime by shooting constitutes a valid basis for departure from a guidelines sentence. The extraordinary circumstance of attempting to kill a witness is something above and beyond mere intent to kill and demonstrates utter ruthlessness that makes the defendant's behavior more reprehensible than other homicides or attempts.
[1] Eliminating a witness to a crime is a valid aggravating factor justifying an upward departure from a sentencing guidelines range.
[2] The motive to eliminate a witness to a crime is considered above and beyond the mere intent to kill.
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Join FLexlaw to unlock all legal intelligence“The motive to eliminate a witness to a crime by shooting him is something above and beyond mere intent to kill, and as such, constitutes a valid basis for departure in an attempted murder case.”
Establishes the core holding that witness elimination is a valid aggravating circumstance for sentencing departure
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Join FLexlaw to unlock all legal intelligenceBlankenship shot Mary Smith during a confrontation that began in a tavern. He then turned to Richard Rested, an eyewitness, and said, 'Dick, I haven't…
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SHARP, Judge.
Blankenship was convicted of murder in the second degree1 and attempted first degree murder,2 and was sentenced to twenty-two years and five years, to be served consecutively. Based on the guidelines, this twenty-seven year sentence was a departure upwards from the applicable sentence range of seventeen to twenty-two years. The trial court’s reason for imposing the aggravated sentence was that Blankenship’s attempted murder offense was committed for the sole purpose of elim- mating an eyewitness, Richard Rested, to the murder of Mary Smith. We affirm.
Florida law provides that a killing for the purpose of eliminating a witness may constitute a valid aggravating factor to justify imposition of the death penalty.3 By analogy, such a circumstance may also be a valid basis to enhance a guideline sentence.4
In this case, the record shows Blankenship shot Smith first, as a result of an earlier confrontation and altercation in a tavern. He then turned to Rested and explained, “Dick, I haven’t got anything against you, but I can’t have no witnesses.” Thereupon he shot Rested in the face.
The motive to eliminate a witness to a crime by shooting him is something above and beyond mere intent to kill, and as such, constitutes a valid basis for departure in an attempted murder case. Extraordinary circumstances clearly not inherent in the crime charged may be used to depart from a guidelines sentence.5 Whether or not the shot is effective in killing the victim, the behavior of the defendant in both instances is more reprehensible than other homicides or attempts because of the utter ruthlessness and lack of justification implicit in killing to eliminate a witness.
AFFIRMED.
UPCHURCH, C.J., and DAURSCH, J., concur. . § 782.04(2), Fla.Stat. (1985).
. § 777.04(4)(a), Fla.Stat. (1985).
.Section 921.141(5)(e), Florida Statutes (1985) states:
(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
See generally, Herring v. State, 446 So. 2d 1049, 1057 (Fla.1984); cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984).
. Steiner v. State, 469 So. 2d 179 (Fla. 3rd DCA), review denied, 479 So. 2d 118 (Fla.1985); Baker v. State, 466 So. 2d 1144 (Fla. 3rd DCA 1985), decision approved, 483 So. 2d 423 (Fla.1986).
. Casteel v. State, 498 So. 2d 1249 (Fla.1986) (psychological trauma arising from extraordinary circumstances not inherent in crime is valid reason for departure); see also, State v. Rousseau, 509 So. 2d 281 (Fla.1987).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Schiming v. State, 617 So. 2d 813 (Fla. 5th DCA 1993)…hat the departure sentence on the attempted murder charge was based solely on the fact that the appellant attempted to eliminate an eyewitness to the robbery offense. The trial court’s written departure order specifically cites Blankenship v. State, 516 So. 2d 76 (Fla. 5th DCA 1987). There is no indication in the record that the trial court relied on the kidnapping conviction in imposing a departure sentence.2 We note, however, that the kidnapping conviction may have influenced the trial court’s determinatio…
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Shupe v. State, 517 So. 2d 780 (Fla. 5th DCA 1988)…, concur. . § 812.13(1) & (2)(c), Fla.Stat. (1985). . § 810.02, Fla.Stat. (1985). . Fla.R.Crim.P. 3.152(a)(1). . Williams v. State, 110 So. 2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102,4 L.Ed.2d 86 (1959). . Blankenship v. State, 516 So. 2d 76 (Fla. 5th DCA 1987).…
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Jones v. State, 520 So. 2d 109 (Fla. 5th DCA 1988)…DAUKSCH, Judge. This is an appeal from a sentence. The trial court gave as a reason for departure that the murder appellant committed was done to eliminate a witness. This is a [*110] valid reason for departure. See Blankenship v. State, 516 So. 2d 76 (Fla. 5th DCA 1987). However, we do not have any record to review which substantiates that reason for departure. Thus we must remand for resentencing where either proof is given to substantiate the departure or a guideline sentence imposed. Armontro…
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
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Casteel v. State, 498 So. 2d 1249 (Fla. 1986)
- Herring v. State, 446 So. 2d 1049 (Fla. 1984)
- Herring v. Florida, 469 U.S. 989 (U.S. 1984)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)
- State v. Terence A. Baker, 483 So. 2d 423 (Fla. 1986)
- Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985)