ALBERT JAMES HARRIS, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harris was convicted of second degree murder and sentenced to thirty years, departing from the recommended guidelines sentence of twelve to seventeen years. The appellate court affirmed the conviction but reversed the sentence, finding that the trial court's reasons for departure—the savage nature of the killing, the victim's age, and psychological trauma to the family—were either improper or unsupported by the record.
The conviction is affirmed, but the sentence is reversed and the case is remanded for resentencing within the recommended guidelines range. All three grounds for departure were found to be inappropriate or insufficiently supported: the savage nature of the crime is an inherent element of second degree murder and cannot support departure; the victim's age did not contribute to the appellant's ability to commit the crime; and while psychological trauma may support departure in extraordinary circumstances, the record did not show trauma of the nature or degree contemplated by precedent.
[1] A trial court may not depart from sentencing guidelines based on elements inherent in the definition of the offense.
[2] A victim's age may serve as a basis for sentencing departure only if the victim's vulnerability due to tender or advanced years contributed to the commission of the crime…
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Join FLexlaw to unlock all legal intelligence“Inherent components of a crime may not serve as a basis for departure; therefore, this reason cannot stand.”
Establishes that the 'savage nature' of the killing, which is an inherent element of second degree murder under Florida law, cannot justify sentencing departure.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHarris was convicted of second degree murder. The victim was nineteen years old, and her mother did not know her whereabouts for seven months. The tri…
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FRANK, Judge.
The appellant has raised and we have considered four issues on appeal, only one of which is meritorious, i.e., the validity of the enhanced sentence. The appellant was convicted of second degree murder and sentenced to thirty years in prison, a departure from the recommended guidelines sentence of twelve to seventeen years. Our review of the record results in agreement with the appellant’s contention that the reasons for departure are inappropriate.
The first departure ground relied upon by the trial court was the “savage nature” of the killing. The statutory definition of second degree murder includes “any act imminently dangerous to another and evincing a depraved mind regardless of human life,_” § 782.04(2), Florida Statutes (1987). Inherent components of a crime may not serve as a basis for departure; therefore, this reason cannot stand. Lamond v. State, 500 So. 2d 342 (Fla. 5th DCA 1986).
The trial court’s second reason for departure was the age of the victim. Age is an unacceptable predicate for departure unless it is shown that the crime was achieved through the victim’s vulnerability stemming from either tender or advanced years. In the present case, the victim’s age, nineteen, did not contribute to the appellant’s ability to execute the crime; hence, this reason for departure fails. See Cromer v. State, 514 So. 2d 416 (Fla. 1st DCA 1987).
The final factor relied upon by the trial court to enhance the appellant’s sentence was the psychological trauma inflicted upon the victim’s family and especially her mother. It is settled that psychological trauma may be used to support departure but only when it results from extraordinary circumstances or produces a discernible physical manifestation. State v. Rousseau, 509 So. 2d 281 (Fla.1987). The victim’s mother testified she anguished, and we have no doubt that she did, not knowing where her daughter was for seven months. Acknowledging the emotional pain suffered by the victim’s mother, however, we cannot agree that the record supports the nature or degree of trauma envisioned in Rousseau. No other member of the victim’s family testified.
The appellant’s conviction is affirmed. The sentence is reversed and we remand for resentencing within the recommended guidelines range. Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
RYDER, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harris v. State, 674 So. 2d 110 (Fla. 1996)
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Miller v. State, 549 So. 2d 1106 (Fla. 2d DCA 1989)…nd reason is invalid, since psychological trauma may be used to support departure only when it results from extraordinary circumstances or produces a discernible physical manifestation. State v. Rousseau, 509 So. 2d 281 (Fla. 1987); Harris v. State, 533 So. 2d 1187 (Fla. 2d DCA 1988). Since those factors are lacking in this case, the trauma of the victims’ families is considered to be an inherent component of the offenses in question. Rousseau. Reason four is also invalid, since appellant was convicted of flee…
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King v. State, 835 So. 2d 1224 (Fla. 2d DCA 2003)…viction. King is correct. An element of the offense cannot be used to enhance the penalty because the elements of the offense already have been factored into the sentencing scheme by increasing the level of the offense charged. See Harris v. State, 533 So. 2d 1187 (Fla. 2d DCA 1988). Although Hams concerns a departure sentence under the guidelines, not a reservation of jurisdiction as here, the reasoning of Harris applies here by analogy because in both situations the trial court must justify the sentence enh…
Authorities Cited
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Lamond v. State, 500 So. 2d 342 (Fla. 5th DCA 1986)
- Cromer v. State, 514 So. 2d 416 (Fla. 1st DCA 1987)