FRANK BYRD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the victim's advanced age and frailty alone are insufficient grounds for an upward departure from sentencing guidelines.
The trial court justified an upward departure from sentencing guidelines based on the victim's age and frailty. This was the second consideration of t…
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PER CURIAM.
We reverse the order sentencing appellant outside the guidelines. On remand from this court’s first consideration of this case in Byrd v. State, 503 So. 2d 434 (Fla. 4th DCA 1987), the trial court justified upward departure on the fact that “[t]he offense committed by this Defendant was extremely heinous in that the victim in this case was an eighty-six (86) year old, frail, blind person.”
Neither advanced age alone, Knowlton v. State, 466 So. 2d 278, 280 (Fla. 4th DCA), rev. denied, 476 So. 2d 675 (Fla.1985), nor the victim’s helplessness or vulnerability to criminal activity, Williams v. State, 492 So. 2d 1308 (Fla.1986), are sufficient as clear and convincing reasons for an upward departure from the guidelines sentences. But cf. Von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA) (fact that victim was 86-year-old female who lived alone was valid reason for departure), remanded on other grounds, 478 So. 2d 1071 (Fla.1985).
In our view, there must be some additional element to justify departure such as the fact that the defendant stood in a position of trust with the victim, Stewart v. State, 489 So. 2d 176 (Fla. 1st DCA 1986), or that the degree of suffering from physical or psychological injury was increased by reason of the advanced age, frailty or helplessness. Knowlton, 466 So. 2d at 280,
Accordingly, the sentence is reversed and this cause is remanded for resentencing within the guidelines.
REVERSED AND REMANDED.
HERSEY, C.J., and ANSTEAD and DELL, JJ., concur.
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Wemett v. State, 567 So. 2d 882 (Fla. 1990)…meet that [*889] standard. This conclusion has already been reached by the district courts. E.g., Bell v. State, 522 So. 2d 989 (Fla. 1st DCA 1988) (departure valid when elderly woman received substantial injury in a purse-snatching); Byrd v. State, 516 So. 2d 107, 108 (Fla. 4th DCA 1987) (“Neither advanced age alone, nor the victim’s helplessness or vulnerability to criminal activity are sufficient as clear and convincing reasons for upward departure from the sentencing guidelines.”); Guzie v. State, 512 So.…1 / 2
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Sewall v. State, 783 So. 2d 1171 (Fla. 5th DCA 2001)…the sentencing guidelines. Prior to the decision in Capers, age alone was insufficient to justify a departure sentence without some additional element to justify the departure, such as, the defendant stood in a position of trust. See Byrd v. State, 516 So. 2d 107, 108 (Fla. 4th DCA 1987); see also Wemett v. State, 567 So. 2d 882, 886-87 (Fla.1990). But even if pre-Capers case law was still applicable, the victims’ ages coupled with the fact that Sewall, their insurance agent who stood in a fiduciary relation…
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Lettman v. State, 526 So. 2d 207 (Fla. 4th DCA 1988)…rture was the vulnerability and tender age of the victim. This reason is invalid. Neither advanced age alone nor helplessness or vulnerability are sufficient as clear and convincing reasons for an upward departure from the guidelines. Byrd v. State, 516 So. 2d 107 (Fla. 4th DCA 1987). The trial court’s third reason for departure was the pattern of abuse perpetrated on the victim. While an escalating pattern of criminal activity is a valid reason for departure from the guidelines when clearly supported by the…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985)
- Knowlton v. State, 466 So. 2d 278 (Fla. 4th DCA 1985)
- Stewart v. State, 489 So. 2d 176 (Fla. 1st DCA 1986)
- von Carter v. State, 478 So. 2d 1071 (Fla. 1985)
- Jackson v. State, 503 So. 2d 434 (Fla. 3d DCA 1987)
- Byrd v. State, 503 So. 2d 434 (Fla. 4th DCA 1987)