GERALD WAYNE BUNNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerald Wayne Bunney was convicted of first-degree murder and kidnapping occurring on September 23, 1988. On appeal, he challenged the trial court's exclusion of testimony regarding an alleged epileptic condition and the imposition of an upward departure sentence for kidnapping based on his contemporaneous capital murder conviction. The appellate court affirmed both convictions and sentences while certifying a sentencing guideline question to the Florida Supreme Court.
The trial court properly excluded the epileptic testimony because no insanity plea was raised. The trial court did not err in departing from the recommended kidnapping sentence based on the contemporaneous capital murder conviction, which remains a valid reason for departure under controlling precedent despite the 1987 amendment making victim injury scoreable.
[1] A trial court may properly exclude testimony regarding a defendant's alleged epileptic condition in the absence of an insanity plea.
[2] A contemporaneous conviction of an unscored capital felony is a valid reason for departing from the recommended sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“the trial court properly excluded the testimony under Chestnut v. State, 538 So.2d 820 (Fla.1989)”
Establishes that epileptic condition testimony is only admissible in support of an insanity plea
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Join FLexlaw to unlock all legal intelligenceOn September 23, 1988, Bunney committed first-degree murder and kidnapping. At trial, he sought to introduce testimony regarding an alleged epileptic …
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SCHEB, Acting Chief Judge.
The defendant, Gerald Wayne Bunney, was convicted after a jury trial, of first degree murder and kidnapping. These offenses occurred on September 23, 1988. For the murder, he was sentenced to life imprisonment with a mandatory sentence of 25 years. For the kidnapping, he was sentenced to a consecutive term of life imprisonment, an upward departure from the recommended guidelines sentence of five and one-half to seven years. We affirm his convictions and sentences.
On appeal, the defendant raises four points, only two of which merit discussion. First, he challenges the trial court’s refusal to allow into evidence testimony regarding an alleged epileptic condition. We think that in the absence of a plea of insanity from the defendant, the trial court properly excluded the testimony under Chestnut v. State, 538 So. 2d 820 (Fla.1989).
Second, the defendant contends that the trial court erred in imposing a departure sentence for the kidnapping conviction. The trial judge scored twenty-four points for death or severe injury. He then departed from the recommended range, giving as his reason that “the scoresheet fails to take into consideration defendant also stands convicted of murder in the first degree arising out of the same criminal episode.” The defendant argues that this was error because the trial judge departed based on a consideration already factored into the presumptive sentence. We disagree.1
Hansbrough v. State, 509 So. 2d 1081 (Fla.1987), and Livingston v. State, 565 So. 2d 1288 (Fla.1988), hold that a contemporaneous conviction of an unscored capital felony is a valid reason for departure. We recognize that those decisions preceded the 1987 amendment which states that victim injury during a criminal episode or transaction is scoreable for offenses occurring after July 1, 1987. Florida Rules of Criminal Procedure re Sentencing Guidelines Rules (3.701 and 3.988), 509 So. 2d 1088 (Fla.1987). Nevertheless, we find Hans-brough and Livingston controlling.
Accordingly, we affirm the defendant’s convictions and sentences. However, we certify the following question to the supreme court as one of great public importance:
IN SENTENCING FOR A FELONY WHERE THERE IS A CONTEMPORANEOUS CONVICTION OF AN UNS-CORED CAPITAL FELONY, IS IT PROPER TO DEPART BASED ON THE DEFENDANT’S CAPITAL CONVICTION WHEN THE APPLICABLE GUIDELINES PROVIDE THAT VICTIM INJURY IS SCOREABLE?
FRANK and PATTERSON, JJ., concur. . Under the interpretation urged by the defendant, an anomalous result could occur. For example, if defendant had been convicted of second degree rather than capital murder, his scoresheet on the kidnapping offense would include points for "victim injury or death,” thereby resulting in his receiving a longer sentence than if he had been convicted of capital murder.
Cases With Similar Vibessemantic neighbors from the corpus
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Bunney v. State, 603 So. 2d 1270 (Fla. 1992)…HARDING, Justice. We review Bunney v. State, 579 So. 2d 880 (Fla. 2d DCA 1991), in which the Second District Court of Appeal certified the following question as one of great public importance: IN SENTENCING FOR A FELONY WHERE THERE IS A CONTEMPORANEOUS CONVICTION OF AN UNS-CORED CAPITAL FELONY, IS IT PROPER…
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Frazier v. State, 630 So. 2d 1237 (Fla. 2d DCA 1994)…parting from the sentencing guidelines. At least two of the judge’s ten reasons for departure are valid; a past failure at rehabilitation and an escalating pattern of criminality. See Livingston v. State, 565 So. 2d 1288 (Fla.1990); Bunney v. State, 579 So. 2d 880 (Fla. 2d DCA 1991). ‘When multiple reasons exist to support a departure from a guidelines sentence, the departure [*1238] shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstan…
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McLENDON v. State, 581 So. 2d 254 (Fla. 2d DCA 1991)…[*255] PER CURIAM. We affirm the judgments and sentences in this case, including the departure from the sentencing guidelines. See Bunney v. State, 579 So. 2d 880 (Fla. 2d DCA 1991). As in Bunney, we certify to the Florida Supreme Court the following question of great public importance: IN SENTENCING FOR A FELONY WHERE THERE IS A CONTEMPORANEOUS CONVICTION OF AN UNS-CORED CAPITAL FELONY, IS IT PROPER TO DEP…
Authorities Cited
- Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987)
- Chestnut v. State, 538 So. 2d 820 (Fla. 1989)
- Livingston v. State, 565 So. 2d 1288 (Fla. 1988)
- FLA. RULES OF CRIM. PROCEDURE RE SENTENCING GUIDELINES (RULES 3.701 & 3.988), 509 So. 2d 1088 (Fla. 1987)