KENNETH CRAWFORD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1989-10-10
Nos. 88-1587, 88-1588
Before NESBITT, LEVY and GERSTEN, JJ.
549 So. 2d 1145 Florida District Court of Appeal, Third District (1989) Positive Treatment
Cited by 4 cases

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Synopsis

Kenneth Crawford was convicted of robbery and theft following a jury trial and had his community control revoked. The Third District Court of Appeal affirmed the robbery conviction and revocation of community control, but vacated the theft conviction as being based on the same act as the robbery, and remanded for resentencing because the trial court's upward departure order contained invalid reasons.


Holding

The court affirmed the robbery conviction and revocation of community control but vacated the theft conviction as duplicitous (both charges arising from the same act). Because the trial court's upward departure order contained two invalid reasons (victim's age and psychological damage, and prior juvenile record) and two valid reasons (commission while on community control and failure to respond to rehabilitation), the case was remanded for resentencing under the Albritton standard.


Headnotes

[1] A conviction for both robbery and theft arising from the single act of taking a victim's purse is an error.

[2] A conviction for a new substantive offense can support the revocation of community control.

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Key Quotes

“The State has acknowledged the trial court's error in entering judgments of conviction and sentences for both robbery and theft based upon the single act of taking the victim's purse”

Establishes that convictions for both offenses arising from one act of taking the purse were improper and the theft conviction was vacated

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Facts & Procedural History

In April 1987, Crawford pleaded nolo contendere to dealing in stolen property and was placed on two years of community control. In August 1987, he was…

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Opinion of the Court
LEVY, Judge.

LEVY, Judge.

In consolidated appeals, defendant below challenges judgments of conviction and sentences for robbery and theft following a jury trial, the revocation of his community control, and an upward departure from the sentencing guidelines. The State concedes that it was error to convict and sentence the defendant in connection with the theft charge, as well as the invalidity of two of the reasons given by the trial court for the upward departure.

In April, 1987, appellant was charged with dealing in stolen property. He pled nolo contendere. Adjudication of guilt was withheld, and he was placed on community control for two years (Case No 1). In August, 1987, appellant was charged with robbery and grand theft arising from a separate incident (Case No 2) in which he grabbed an elderly woman’s purse and cane from the passenger seat of a car as the woman was entering, knocking the woman’s glasses off in the process, but otherwise not injuring her. Thereafter, an affidavit of violation of community control was filed in Case No. 1, charging both appellant’s commission of the offenses involved in Case No. 2 and certain technical violations of appellant’s community control. Appellant was ultimately convicted as charged in Case No.

2. At a post-trial hearing, the court dismissed all allegations of technical violations of community control, but found that the commission of the robbery and the theft did constitute a violation of appellant’s community control, and, accordingly, adjudicated him guilty of these crimes, revoked his community control, and adjudicated him guilty of the original offense of dealing in stolen property. A single scoresheet was prepared for both cases. The court upwardly departed from the sentencing guidelines in a written order, listing as its reasons: 1) that the robbery and theft offenses were committed on June 4, 1987, while appellant was on community control for the May 20, 1987 stolen property offense, 2) that appellant’s victim suffered psychological damage beyond that normally associated with the offense, 3) that appellant had been thrice convicted and adjudicated of robbery as a juvenile, and 4) that appellant had failed to respond to past rehabilitation efforts. This appeal follows.

We find sufficient record evidence to support the jury’s finding of guilt and the conviction for the new substantive offense of robbery, McCloud v. State, 335 So. 2d 257 (Fla.1976); see Santiago v. State, 497 So. 2d 975 (Fla. 4th DCA 1986), and, accordingly, affirm the revocation of appellant’s community control based upon the conviction. Lambert v. State, 545 So. 2d 838 (Fla.1989).

The State has acknowledged the trial court’s error in entering judgments of conviction and sentences for both robbery and theft based upon the single act of taking the victim’s purse, See Carawan v. State, 515 So. 2d 161 (Fla.1987); Kelly v. State, 546 So. 2d 441 (Fla. 2d DCA 1989); Etlinger v. State, 538 So. 2d 1354 (Fla. 2d DCA 1989); Cole v. State, 530 So. 2d 983 (Fla. 5th DCA), rev. denied, 539 So. 2d 475 (Fla.1988), and we therefore vacate appellant’s conviction and sentence for theft.

The State also has conceded the invalidity of two of the four reasons listed in ,the departure order, to wit: the age of and psychological damage to the victim, and appellant’s prior juvenile record.

We find the two remaining reasons to be valid departure reasons which are supported by sufficient record evidence.

However, because the underlying criminal offense occurred prior to July 1, 1987, we look, not to Section 921.001(5), Florida Statutes (1987), but rather, to Albritton v. State, 476 So. 2d 158 (Fla.1985) for the standard which we must apply when reviewing a departure order containing both proper and improper reasons. State v. McGriff, 537 So. 2d 107 (Fla.1989); Rodriguez v. State, 547 So. 2d 708 (Fla. 2d DCA 1989). Under Albritton, the ease must be remanded for resentencing unless the record demonstrates, beyond a reasonable doubt, that the absence of the invalid reason would not have affected the sentence. Williams v. State, 544 So. 2d 1125 (Fla. 3d DCA 1989). Inasmuch as the record before us contains no such showing, we remand for resentencing.

We find no merit in appellant’s remaining contentions, and therefore affirm the trial court in all other respects.

Affirmed in part, reversed in part, and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Mitchell v. State, 554 So. 2d 572 (Fla. 3d DCA 1989)
    …tion of community control may not be used to support any additional departure. Hamilton v. State, 548 So. 2d 234 (Fla.1989); Perez v. State, 554 So. 2d 14 (Fla. 3d DCA 1989); Hunnicutt v. State, 549 So. 2d 1138 (Fla. 3d DCA 1989); Crawford v. State, 549 So. 2d 1145 (Fla. 3d DCA 1989); Hamilton v. State, 547 So. 2d 305 (Fla. 3d DCA 1989); Burg v. State, 550 So. 2d 1192 (Fla. 5th DCA 1989); Kramer v. State, 550 So. 2d 557 (Fla. 5th DCA 1989). Reversed and remanded for resentenc-ing.…
  • Daren Lamar Williams v. State, 635 So. 2d 1035 (Fla. 3d DCA 1994)
    …rdingly, reversal of the grand theft conviction is required. See Sullivan v. State, 631 So. 2d 1142 (Fla.1994); see also Cavawan v. State, 515 So. 2d 161 (Fla.1987), abrogated in part by, State v. Smith, 547 So. 2d 613 (Fla.1989); Crawford v. State, 549 So. 2d 1145 (Fla. 3d DCA 1989). The conviction and sentence for grand theft is reversed with directions to the trial court to vacate same. The conviction for robbery with a weapon is affirmed. Affirmed in part and reversed in part, with directions.…

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