JAMES BARNES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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On remand from the Florida Supreme Court, the Third District Court of Appeal reaffirmed James Barnes's departure sentence for attempted first-degree murder of his wife, but this time based on clear and convincing evidence of victim trauma and the manner of the crime's commission, rather than the defendant's violation of familial trust, which the supreme court had rejected as an independent basis for departure.
The court affirmed the departure sentence, finding that the trial court did not abuse its discretion in relying on the victim's extraordinary psychological trauma and the manner in which the crime was committed as clear and convincing reasons for departure from the guidelines.
[1] Psychological trauma suffered by a victim beyond that normally associated with a crime may constitute a clear and convincing reason for a departure sentence.
[2] The circumstances and actions of an accused in the commission of an offense, including the amount of force used, may form the basis for a departure from sentencing guidel…
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Join FLexlaw to unlock all legal intelligence“The sentencing judge is in the best position to observe the [*933] vicious and malevolent intentions of the accused together with their marked and lasting effect on the victim.”
Establishes the rationale for giving deference to the trial judge's determination of victim trauma as a basis for departure.
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Join FLexlaw to unlock all legal intelligenceJames Barnes was convicted of attempted first-degree murder of his wife. At sentencing, the trial court imposed a departure sentence based on several …
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On Remand
PER CURIAM.
In Barnes v. State, 562 So. 2d 729 (Fla. 3d DCA 1990), this court affirmed the departure sentence ordered as to defendant James Barnes, basing our opinion as to this issue upon the defendant’s use of familial trust to effectuate the crime for which he was convicted, the attempted first-degree murder of his wife. In Barnes v. State, 588 So. 2d 585 (Fla.1991), the supreme court determined the trial court’s departure from the guidelines could not be affirmed on that basis. It quashed our order and remanded the case for further proceedings in accord with Davis v. State, 517 So. 2d 670 (Fla.1987) and Wilson v. State, 567 So. 2d 425 (Fla.1990).
Consistent with the supreme court’s instruction to reconsider the sentence ordered, we once again affirm defendant’s departure sentence. We base our opinion upon record evidence of clear and convincing reasons for departure stated by the trial judge at the time of sentencing, other than the violation of familial trust. The court’s written order gave the following reasons for departure:
1. Victim suffered trauma beyond normal;
2. Breach of trust with wife;
3. Used children to accomplish goal;
4. Committed the crime in front of children; and
5. Tried to fire second time, third time, and fourth time.
Psychological trauma to the victim may be used to justify a departure sentence. Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984). “The sentencing judge is in the best position to observe the vicious and malevolent intentions of the accused together with their marked and lasting effect on the victim.” Id. at 587. Here, after the crime, the victim took a 3-month leave of absence from work, entered a clinic, and utilized a program for battered women. Months later, she still did not sleep well, she was too frightened to give her address to authorities, and she still called the organization for battered women on occasions of emotional relapses. Thus, we find no abuse of discretion in the trial court’s determination that this trauma represented a clear and convincing reason for departure from the guidelines.
Additionally, the sentencing judge did not commit an abuse of discretion in considering the manner in which the crime was perpetrated. The circumstances and actions of the accused in the commission of the offense, including the amount of force used, may form the basis for a departure from the guidelines. Smith v. State, 454 So. 2d 90, 91 (Fla. 2d DCA 1984). Here, four times, the defendant pulled the trigger of the gun he was aiming at the victim. Accordingly, considering the manner in which the crime was committed, the decision to depart from the guidelines was valid.
Because the underlying criminal offense occurred after July 1, 1987, we look to section 921.001(5), Florida Statutes (Supp. 1988) and affirm the sentence imposed, finding at least one circumstance or factor justifying the departure, and therefore, need not consider the presence of other circumstances or factors found not to justify departure.
Accordingly, we adopt as our own, the Supreme Court of Florida’s opinion in Barnes v. State, 588 So. 2d 585 (Fla.1991) quashing our opinion in Barnes v. State, 562 So. 2d 729 (Fla. 3d DCA 1990). On remand, based upon the reasoning stated herein, we affirm the departure .sentence ordered.
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Brown v. State, 611 So. 2d 540 (Fla. 3d DCA 1992)…ctive Gaborick testified that in his twenty years of police work, he had never seen a live victim beaten so badly. The trial court “did not commit an abuse of discretion in considering the manner in which the crime was perpetrated.” Barnes v. State, 597 So. 2d 931, 933 (Fla. 3d DCA 1992). The amount of force use by the defendant constitutes a valid reason for departure. McCall, 524 So. 2d at 663; Barnes, 597 So. 2d at 932; Wright v. State, 538 So. 2d 497 (Fla. 3d DCA 1989); Smith v. State, 454 So. 2d 90 (Fla.…
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Taylor v. State, 659 So. 2d 1202 (Fla. 3d DCA 1995)…ence that they formed.”); Williams, 581 So. 2d at 146; Morgan, 550 So. 2d at 153. Furthermore, the sentencing judge may consider the manner and circumstances under which the crime was perpetrated as a basis for a departure sentence. Barnes v. State, 597 So. 2d 931 (Fla. 3d DCA), review denied, 605 So. 2d 1262 (Fla.1992). The court’s observation that the defendant continued to shoot into the fleeing vehicle sixteen times, killing one of three occupants, when weighed together with the defendant’s previous recor…
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Gonzalez v. State, 652 So. 2d 900 (Fla. 3d DCA 1995)…PER CURIAM. We find no error in the evidentiary ruling complained of, the upward sentencing departure, Brown v. State, 611 So. 2d 540 (Fla. 3d DCA 1992), review denied, 621 So. 2d 1065 (Fla.1993); Barnes v. State, 597 So. 2d 931 (Fla. 3d DCA 1992), review denied, 605 So. 2d 1262 (Fla.1992); Hams v. State, 531 So. 2d 1349 (Fla.1988); Moreira v. State, 500 So. 2d 343 (Fla. 3d DCA 1987); § 921.001(7), Fla. Stat. (1993), or the imposition of consecutive minimum mandatory terms.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Davis v. State, 517 So. 2d 670 (Fla. 1987)
- Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984)
- Wilson v. State, 567 So. 2d 425 (Fla. 1990)
- Barnes v. State, 588 So. 2d 585 (Fla. 1991)
- Barnes v. State, 562 So. 2d 729 (Fla. 3d DCA 1990)