VAUGHN R. SIMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On remand from the Florida Supreme Court, the First District Court of Appeal reaffirmed the validity of a sentencing guideline departure reason based on defendant's firing of a pistol during robberies that endangered nearby persons and victims. The court rejected defendant's argument that intervening case law had invalidated this departure reason.
The court held that neither Anthony nor Bulger required invalidation of the departure reason. The firing of shots in an area where others may be endangered, combined with the shots fired at unarmed victims with intent to kill or murder, remained a valid reason for sentencing departure.
[1] A court may reaffirm a prior decision regarding the validity of sentencing guideline departure reasons, even after supreme court review, if subsequent case law does not c…
[2] A reason for departure from sentencing guidelines based on firing shots that endangered persons nearby, in addition to shots fired at victims, may remain valid despite su…
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Join FLexlaw to unlock all legal intelligence“During the two robberies the defendant fired his pistol six times — two of which shots were to intimidate and hasten the victims into compliance. Those wildly fired shots placed persons nearby at great risk. The other four shots were fired at unarmed victims (at one with a premeditated intent to murder) and at the other with the intent to kill or maim.”
The specific departure reason that the court held remained valid under the applicable sentencing guidelines jurisprudence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceVaughn Simpson committed two robberies during which he fired his pistol six times. Two shots were fired to intimidate and hasten victims into complian…
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ZEHMER, Judge.
Upon review of our prior decisions in this case,1 the supreme court approved in part and quashed in part our decision regarding the validity of reasons for departure from the sentencing guidelines. State v. Simpson, 554 So. 2d 506 (Fla.1989). The court disapproved one of the two remaining reasons for departure held valid by this court and expressly stated that it did not reach the validity of the following sole surviving reason:
During the two robberies the defendant fired his pistol six times — two of which shots were to intimidate and hasten the victims into compliance. Those wildly fired shots placed persons nearby at great risk. The other four shots were fired at unarmed victims (at one with a premeditated intent to murder) and at the other with the intent to kill or maim.
(R. 72).
On remand, defendant Simpson contends that since this court’s original decision affirming the validity of this reason, court decisions interpreting the sentencing guideline rule have changed the law and made this reason invalid also. Specifically, defendant argues that Anthony v. State, 524 So. 2d 655 (Fla.1988), and Bulger v. State, 537 So. 2d 672 (Fla. 1st DCA 1989), make it clear that shooting at someone in an area where others may be endangered is not a valid reason for departure, and under these decisions the above-stated reason can no longer be valid. Upon further review we conclude that neither of these decisions requires us to change our previous decision and now to hold that the quoted reason is invalid. Although we are somewhat uncertain in our understanding of the rationale for the Anthony decision, if we are incorrect in holding that the above reason remains valid under Anthony, we are confident that the supreme court will again review this case based on conflict jurisdiction and correct our misunderstanding.
Pursuant to the mandate of the Florida Supreme Court, we hereby adopt that court’s opinion as the opinion of this court and reaffirm the validity of the quoted reason for departure. In accordance with our original decision reported at 502 So. 2d 61, this cause is remanded for resentencing pursuant to Albritton v. State, 476 So. 2d 158 (Fla.1985).
SHIVERS, C.J., and ERVIN, J., concur. . Simpson v. State, 505 So. 2d 1378 (Fla. 1st DCA 1987); Simpson v. State, 502 So. 2d 61 (Fla. 1st DCA 1987).
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Strawn v. State, 576 So. 2d 877 (Fla. 5th DCA 1991)…wever, the facts surrounding those cases reveal that a defendant created a direct, substantial risk. See Dobson v. State, 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…
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Vaughn R. Simpson v. State, 617 So. 2d 749 (Fla. 1st DCA 1993)…of habeas corpus. Finding no merit in petitioner’s claims of ineffective assistance of appellate counsel, we deny the petition. DENIED. BOOTH, SMITH and MINER, JJ., concur. . See State v. Simpson, 554 So. 2d 506 (Fla.1989); Simpson v. State, 562 So. 2d 830 (Fla. 1st DCA 1990); Simpson v. State, 505 So. 2d 1378 (Fla. 1st DCA 1987); Simpson v. State, 502 So. 2d 61 (Fla. 1st DCA 1987). . One of the alleged grounds of ineffective assistance of appellate counsel pertains to counsel’s performance before…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Vaughn R. Simpson, 554 So. 2d 506 (Fla. 1989)
- Vaughn R. Simpson v. State, 505 So. 2d 1378 (Fla. 1st DCA 1987)
- Anthony v. State, 524 So. 2d 655 (Fla. 1988)
- Vaughn R. Simpson v. State, 502 So. 2d 61 (Fla. 1st DCA 1987)
- Bulger v. State, 537 So. 2d 672 (Fla. 1st DCA 1989)