STEVE SOLOMON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Steve Solomon appealed his eight-year sentence for aggravated battery, battery on a law enforcement officer, and resisting an officer with violence, claiming it improperly departed from sentencing guidelines. The Florida District Court of Appeal agreed and reversed the sentence, finding that the trial court's justifications for departing from the guideline range of 2.5 to 3.5 years were either unsupported by the record or contrary to established law.
The court reversed the sentence and remanded for resentencing within the guideline range. The trial court's three justifications for departure were all improper: habitual offender status is not a valid reason to depart from guidelines; the fact that the crime was committed against a police officer was an inherent element of the offense, not a valid departure factor; and the finding about the timing of the previous offense lacked record support.
[1] Adjudication as an habitual offender is not a valid justification for departing from sentencing guidelines.
[2] The fact that an offense was committed against a law enforcement officer acting in the line of duty is an inherent component of the crime and does not justify departure f…
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 intelligence“habitual offender status is not an adequate reason to depart from sentencing guidelines”
Establishes that one of the trial court's primary justifications for departure was legally insufficient under controlling precedent from Whitehead v. State.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA jury convicted Solomon of aggravated battery, battery upon a law enforcement officer, and resisting a law enforcement officer with violence. The tri…
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PER CURIAM.
The defendant appeals his sentence on the claim that it constituted an improper departure from the sentencing guidelines. We agree and reverse the sentence and remand for proper resentencing.
A jury convicted the defendant of 1) aggravated battery, § 784.045(l)(a), Fla.Stat. (1985), 2) battery upon a law enforcement officer, § 784.07, Fla.Stat. (1985), and 3) resisting a law enforcement officer with violence, § 843.01, Fla.Stat. (1985). Under the pertinent sentencing guidelines, the trial court was authorized to impose a sentence of from two and one-half years to three and one-half years imprisonment.
In this case, the trial court sentenced the defendant to eight years imprisonment. In departing from the guidelines sentence, the trial court made the following findings: a) the instant offense was committed a short time after a previous offense, b) the offense was committed upon a police officer acting in the line of duty, and c) the defendant was determined to be an habitual offender and was so adjudicated, pursuant to section 775.084, Florida Statutes (1985). These findings either lack record support or their use is contrary to established case law.
Considering the findings in reverse order, we first determine that the adjudication of the defendant as an habitual offender was no justification for the court to depart from sentencing guidelines. Whitehead v. State, 498 So. 2d 863 (Fla.1986) (habitual offender status is not an adequate reason to depart from sentencing guidelines). Here, the trial court was obligated to follow Whitehead and limit the defendant’s sentence to guideline perimeters.
Next, the finding that the crime was committed against a police officer acting in the line of duty constituted the gist of the offense as defined by the statute. § 784.07, Fla.Stat. (1985). Consequently, this fact was an inherent component of the crime of which he was convicted, not justifying departure from sentencing guidelines. State v. Mischler, 488 So. 2d 523 (Fla.1986).
Finally, the finding that the offense was committed a short time after a previous offense has no record support and therefore cannot stand. Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984).
For the foregoing reasons, we reverse the sentence herein and remand for resen- tencing within the recommended range of the guidelines.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Butler v. State, 545 So. 2d 447 (Fla. 3d DCA 1989)…unds asserted by the trial judge for the upward departure sentence imposed below are invalid. See Hester v. State, 520 So. 2d 273 (Fla.1988); McGriff v. State, 528 So. 2d 396 (Fla. 3d DCA 1988), approved, 537 So. 2d 107 (Fla.1989); Solomon v. State, 528 So. 2d 1367 (Fla. 3d DCA 1988). Under McGriff v. State, 537 So. 2d 107 (Fla.1989), since the crime involved occurred prior to the enactment of section 921.001(5), Florida Statutes (1987), the cause is governed by the rule of Albritton v. State, 476 So. 2d 158 (…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984)