FRANCIS X. WAREHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Francis Wareham appeals his sentence for manslaughter following a no-contest plea, challenging the trial court's departure from sentencing guidelines based on the risk he created by firing into a crowd. The appellate court affirms, holding that evincing flagrant disregard for others' safety constitutes a proper departure reason under Florida law.
The trial court properly departed from the guidelines. Evincing flagrant disregard for the safety of others constitutes a clear and convincing reason for departure under Florida law, and this departure reason does not improperly rely on unconvicted crimes or factors relating only to the instant offense.
[1] A trial court's departure from sentencing guidelines is permissible if at least one of the stated reasons for departure is valid, even if other reasons are invalid.
[2] A defendant's lack of regard for the law and the judicial system, demonstrated by failure to comply with release conditions and commission of offenses shortly thereafter,…
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“evincing a flagrant disregard for the safety of others does constitute a clear and convincing reason for departure”
The court's statement of the controlling legal principle from Scurry v. State that justified the sentence departure.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWareham observed Gregory Jackson (who owed his brother $10) at a bar and engaged him in a fight. After the fight was broken up, Wareham obtained a fir…
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HARRIS, Judge.
Francis X. Wareham appeals his sentence entered after a plea of no contest to manslaughter with a firearm (reduced from first degree murder) and violation of probation (on a previous conviction for burglary). His recommended guideline range was 12 to 17 years. The judge departed and sentenced him to 20 years in prison for the manslaughter conviction to be followed by 5 years in prison for the burglary. Appellant contends the trial court relied on an improper reason for departure. We disagree and affirm the sentence.
As appellant was driving by a bar, the Seville Domain, he saw Gregory Jackson, a man who owed his brother $10.00. A fight ensued between appellant and Jackson. After the fight was broken up, appellant left the area and obtained a firearm. Returning he observed Jackson and between 25-45 people around the bar. Driving by, appellant fired several shots into the crowd; Jackson was killed. Five bullet holes were found in the building between knee and ankle level. Some of the people standing by the victim stated that they believed they were being shot at and were scared.
The judge’s written reason for departure was that “defendant created risk to many people by firing pistol into a crowd of people (35-40 people).” Appellant urges that this is an improper reason for departure because Rule 3.701 d. 11., Florida Rules of Criminal Procedure, provides:
Reasons for deviating from the guidelines shall not include factors relating to prior arrests without convictions. Rea sons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.
Surely the shooting into the crowd did not constitute a prior arrest without conviction. And while the shooting into the crowd was a factor relating to the incident, it was not a factor relating to the instant offense. These extra shots into the crowd were not factors in the manslaughter of Jackson.
The Supreme Court held in Scurry v. State, 489 So. 2d 25 (Fla.1986) that evincing a flagrant disregard for the safety of others does constitute a clear and convincing reason for departure. Appellant urges that since some of the bystanders were put in fear, to use this as a basis for departure would be to rely on the unconvicted crimes of assault. But appellant misconceives the basis for departure. It is his flagrant disregard for the safety of others that justifies the departure; whether the bystanders were in fear, or even aware of the danger, is unimportant.
AFFIRMED.
COWART and GRIFFIN, JJ., concur.
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Dobson v. State, 566 So. 2d 560 (Fla. 5th DCA 1990)…ant’s crime created an extreme risk of safety to others.” 1 Here not only were bystanders put at risk because of this “gangland type” hit outside a public lounge, one was actually injured. This is a sufficient reason for departure. Wareham v. State, 560 So. 2d 408 (Fla. 5th DCA 1990). AFFIRMED. DANIEL, C.J., and PETERSON, J., concur. . The court listed additional reasons which appear improper. However, the sentence should be upheld if at least one reason for departure is appropriate. § 921.001(5), Fla.Stat…
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Hernandez v. State, 660 So. 2d 1116 (Fla. 4th DCA 1995)…n, engaged the police in a shoot-out in a public housing project. See Previlon v. State, 500 So. 2d 716 (Fla. 4th DCA 1987); Hannah v. State, 480 So. 2d 718 (Fla. 4th DCA 1986); Webster v. State, 500 So. 2d 285 (Fla. 1st DCA 1986); Wareham v. State, 560 So. 2d 408 (Fla. 5th DCA 1990); and Green v. State, 545 So. 2d 359 (Fla. 2d DCA 1989).1 In the present case, the evidence was un-contradicted that appellant fired the weapon directly into the side window of the victim’s car. There was no evidence that any oth…
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Strawn v. State, 576 So. 2d 877 (Fla. 5th DCA 1991)…te, 566 So. 2d 560 (Fla. 5th DCA 1990) (“gangland-style hit” outside public lounge while bystanders were nearby); Simpson v. State, 562 So. 2d 830 (Fla. 1st DCA 1990) (wildly firing shots in an area placing nearby persons at risk); Wareham v. State, 560 So. 2d 408 (Fla. 5th DCA 1990) (wildly firing shots into a crowd); Miller v. State, 549 So. 2d 1106 (Fla. 2d DCA 1989) (flagrant disregard for safety of others by driving on wrong side of road and endangering numerous motorists, some of whom were forced off th…
Authorities Cited
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)