JAMES LATTIMORE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Lattimore appealed his convictions for burglary, strong-arm robbery, and grand theft auto. The appellate court affirmed the convictions but reversed the sentences, finding that the trial court erred in sentencing Lattimore as a habitual offender without making required findings and relying on invalid or insufficiently articulated sentencing departure grounds.
The court affirmed the convictions, holding that (1) a prima facie corpus delicti of strong-arm robbery was established independent of confession through victim's 911 call, visible injury, upset demeanor, and signs of entry and theft; (2) the theft of the automobile was a separate, independent criminal act from the robbery; and (3) the sentences must be reversed because the trial court failed to make required findings for habitual offender sentencing and relied on invalid or insufficiently articulated sentencing departure grounds.
[1] A prima facie corpus delicti of strong-arm robbery can be established by evidence of a victim's report of being robbed, visible injury to the victim, the victim's distres…
[2] The theft of a victim's automobile can constitute a separate criminal act from a robbery committed inside the victim's house, even if the robbery resulted in the defendan…
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Join FLexlaw to unlock all legal intelligence“a prima facie corpus delicti of a strong-arm robbery was presented in this case, apart from the defendant's confession”
Establishes that the court found sufficient independent evidence of the robbery apart from the defendant's confession, supporting denial of the motion for judgment of acquittal on the robbery charge.
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Join FLexlaw to unlock all legal intelligenceJames Lattimore was convicted by jury verdict of burglary of a dwelling, strong-arm robbery, and grand theft auto. The strong-arm robbery victim calle…
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PER CURIAM.
This is an appeal by the defendant James Lattimore from final judgments of conviction and sentences for (1) burglary of a dwelling, (2) strong-arm robbery, and (3) grand theft auto, based on an adverse jury verdict. We affirm the judgments of conviction, but reverse the-sentences and remand for resentencing, based on the following briefly stated legal analysis.
First, we conclude that a prima fa-cie corpus delicti of a strong-arm robbery was presented in this case, apart from the defendant’s confession, and accordingly, the trial court correctly denied the defendant’s motion for judgment of acquittal on the robbery charge. The victim complained to the police on a 911 tape that she had “just been robbed” in her house; a photograph of the victim was introduced in evidence showing an injury to her left arm which she had when the police responded to her house after receiving the 911 call; the victim was extremely upset when police responded to the subject call; and the house showed signs of an entry into the house and theft of property therein. See State v. Allen, 335 So. 2d 823, 825 (Fla.1976); Knight v. State, 402 So. 2d 435, 436 (Fla. 3d DCA 1981); Ponder v. State, 221 So. 2d 437, 438 (Fla. 3d DCA 1969); see also Bates v. State, 465 So. 2d 490, 492 (Fla.1985) (slight victim injury; robbery proved), cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987); Santiago v. State, 497 So. 2d 975, 976 (Fla. 4th DCA 1986) (same).
Second, we conclude that the defendant’s theft of the victim’s automobile was a separate, independent criminal act apart from the strong-arm robbery in the victim’s house during which the defendant secured, among other things, the keys to the subject automobile, and thereafter walked outside the house and stole said automobile; accordingly, the trial court correctly denied the defendant’s motion for judgment of acquittal on the grand theft auto charge. See Waters v. State, 542 So. 2d 1371 (Fla. 3d DCA 1989); Joseph v. State, 316 So. 2d 585, 586 (Fla. 4th DCA 1975); see also Carawan v. State, 515 So. 2d 161, 170 n. 8 (Fla.1987) (separate punishments are not prohibited for separate acts).
Contra Castleberry v. State, 402 So. 2d 1231 (Fla. 5th DCA 1981) (on similar facts, holding that since the auto theft resulted from the same force used in obtaining the keys and other personalty, it was a lesser included offense of the robbery), rev. denied, 412 So. 2d 470 (Fla.1982).
Third, we conclude that the trial court erred in sentencing the defendant as an habitual offender under Section 775.-084(3), Florida Statutes (1987), because the trial court failed to make a specific finding, as required by the then-effective statute (since amended), that it was necessary for the protection of the public that the defendant be sentenced to an extended term. Donaldson v. State, 519 So. 2d 737 (Fla. 3d DCA 1988).
Moreover, the reasons given by the trial court for departing from the sentencing guidelines in this case do not justify the subject departure. “Habitual felony offender” was, without dispute, an invalid ground for the sentencing guidelines departure, Whitehead v. State, 498 So. 2d 863 (Fla.1986); “elderly victim,” without more, was also invalid ground for the said departure, Wemett v. State, 567 So. 2d 882 (Fla.1990); Wheeler v. State, 525 So. 2d 1008, 1009 (Fla. 3d DCA 1988); an “escalating pattern of criminal behavior,” while a valid ground for a sentencing guidelines departure, was not shown on this record, in that the defendant’s ten prior felony convictions show only a continuous, but not an escalating, pattern of criminal conduct, State v. Jones, 530 So. 2d 53, 55 (Fla.1988); and “short time after being sentenced” is not, in our view, a sufficiently articulated reason for a sentencing guidelines departure as it is entirely too vague. Davis v. State, 517 So. 2d 670, 672 n. 1 (Fla.1987); Ferguson v. State, 537 So. 2d 144 (Fla. 3d DCA 1989).
Accordingly, the sentences imposed in this case cannot stand.
The final judgments of conviction under review are affirmed. The sentences under review are reversed and the cause is remanded to the trial court with directions to sentence the defendant within the sentencing guidelines.
Affirmed in part; reversed in part and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hayes v. State, 803 So. 2d 695 (Fla. 2001)…as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is: 6. A motor vehicle, except as provided in paragraph (2)(a). . In affirming Hayes' convictions, the Third District relied on its prior decision in Lattimore v. State, 571 So. 2d 99, 100 (Fla. 3d DCA 1990). In Lattimore, the Third District rejected the defendant’s contention that a double jeopardy violation occurred as a result of his convictions for both strong-arm robbery and grand theft of a motor vehicle. The Third District…
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Wilson v. State, 608 So. 2d 842 (Fla. 3d DCA 1992)…e. The defendant’s conviction for grand theft is proper and should be affirmed where the theft of the automobile was a separate, independent criminal act apart from the strong-arm robbery which occurred inside the hotel room. See Lattimore v. State, 571 So. 2d 99 (Fla. 3d DCA 1990). Accordingly, the trial court properly denied the defendant’s motion for judgment of acquittal on the grand theft auto charge. As the state properly concedes, the trial court erred in convicting and sentencing the defendant for p…
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Kipping v. State, 702 So. 2d 578 (Fla. 2d DCA 1997)…te also concedes that protection of the public and the age of the victims (numbers 1 and 2) are insufficient departure reasons unless coupled [*582] with another valid reason. See Ready v. State, 657 So. 2d 53 (Fla. 2d DCA 1995); Lattimore v. State, 571 So. 2d 99 (Fla. 3d DCA 1990). Therefore, there is no need to analyze these two factors unless there exists another valid basis for departure in the remaining reasons. Emotional trauma (number 3) fails for insufficiency of evidence. This departure reason is f…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- State v. Allen, 335 So. 2d 823 (Fla. 1976)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- Wemett v. State, 567 So. 2d 882 (Fla. 1990)
- Davis v. State, 517 So. 2d 670 (Fla. 1987)
- Kayle Barrington Bates v. State, 465 So. 2d 490 (Fla. 1985)
- Castelberry v. State, 402 So. 2d 1231 (Fla. 5th DCA 1981)
- Santiago v. State, 497 So. 2d 975 (Fla. 4th DCA 1986)
- Waters v. State, 542 So. 2d 1371 (Fla. 3d DCA 1989)