ENRIQUE VASQUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Enrique Vasquez appeals his convictions for DUI manslaughter and leaving the scene of an accident, challenging both the convictions and an upward departure sentence of 35 years. The court affirms the convictions and the sentence, finding that two of three stated reasons for the departure were supported by the record.
The court affirmed the convictions and the departure sentence. While the first reason for departure (heavily-traveled bridge) lacked record support, the second and third reasons (the victim's suffering and the extremely high blood alcohol level) were valid and together supported the departure sentence such that harmless error was found.
[1] A trial court may not use an inherent component of a crime to justify an upward departure sentence.
[2] The suffering endured by a victim, such as burning to death, is not an inherent component of DUI manslaughter and can support an upward departure sentence.
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Join FLexlaw to unlock all legal intelligence“There is no record support for the first departure reason. No testimony was elicited to show that the bridge was heavily traveled at the time the accident occurred or, indeed, at any specific time of day.”
Establishes that one of the trial court's stated reasons for departure lacked evidentiary support in the record.
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Join FLexlaw to unlock all legal intelligenceVasquez was convicted of two counts of DUI manslaughter and one count of leaving the scene of an accident involving personal injury. He was sentenced …
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PER CURIAM.
Enrique Vasquez appeals judgments of conviction and an upward departure sentence on two counts of DUI manslaughter and one count of leaving the scene of an accident involving personal injury. We affirm the judgments of conviction and comment only upon the alleged error in the departure sentence; Vasquez’s remaining points of error regarding evidentiary rulings are meritless.
The trial court sentenced Vasquez to thirty-five years’ incarceration, an upward departure from the guidelines range of seventeen to twenty-two years. The trial court’s written reasons for departure included Vasquez’s flagrant disregard for the welfare and safety of others in driving drunk across a heavily-traveled bridge, the suffering endured by one of the victims who burned to death at the scene, and Vasquez’s blood alcohol level of .277, which was almost three times the legal limit.
There is no record support for the first departure reason. No testimony was elicited to show that the bridge was heavily traveled at the time the accident occurred or, indeed, at any specific time of day. Testimony at trial established only that “the bridge appeared to be a parking lot” because of the accident and the resulting traffic backup.
The second reason for departure is valid. While a court may not use an inherent component of the crime in question to justify departure, Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA), rev. denied, 479 So. 2d 118 (Fla.1985), being burned alive is in no way an inherent component of DUI manslaughter. There is clear record support for the third departure reason, that Vasquez was impaired nearly three times the level at which the law presumes an individual to be under the influence of alcohol. In Manis v. State, 528 So. 2d 1342 (Fla. 2d DCA), rev. denied, 534 So. 2d 400 (Fla.1988), the court upheld a departure sentence for vehicular homicide based upon the defendant’s flagrant disregard for the safety of others coupled with a .30 blood alcohol level. In the instant case, the second and third reasons taken together support the departure sentence. We find that the state has shown beyond a reasonable doubt that the absence of the impermissible reason would not have affected the departure sentence. Albritton v. State, 476 So. 2d 158 (Fla. 1985). Accordingly, the sentence under review is affirmed.
Affirmed.
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Citator
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985)
- Manis v. State, 528 So. 2d 1342 (Fla. 2d DCA 1988)