DONALD LEWIS SMITH, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
PER CURIAM.
We have for review Smith v. State, 604 So. 2d 944 (Fla. 1st DCA 1992), which certified the following question of great public importance:
Do defendant’s efforts to cover up a crime allow sentencing guidelines departure?
We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the negative consistent with our opinion in State v. Varner, 616 So. 2d 988 (Fla.1993). The opinion below is quashed and remanded for reconsideration in light of Varner. It is so ordered.
overton, McDonald, shaw, GRIMES, KOGAN and HARDING, JJ., concur. BARKETT, C.J., concurs specially with an opinion.
BARKETT, Chief Justice,
specially concurring.
Regardless of whether the concealment of a murder is a crime for which the defendant was not charged, a departure from the sentencing guidelines cannot be based on an inherent component of the crime in question. State v. Mischler, 488 So. 2d 523 (Fla.1986). Concealment of a murder by the murderer is “a factor common to nearly all crimes in the sentencing category.” Lerma v. State, 497 So. 2d 736, 739 (Fla.1986) (applying Mischler to the stated rea-, sons for departure in a sexual battery case, i.e., dangerousness of the defendant and helplessness of the victim).
Although I agree with the majority that State v. Varner, 616 So. 2d 988 (Fla.1993) also applies, I would reverse the decision based on Mischler as well.
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Kirby Lee Casselman v. State, 761 So. 2d 482 (Fla. 5th DCA 2000)…ention of detection of his criminal conduct by law enforcement and to escape from being stopped and detained by them.” Casselman argues that the departure reasons are invalid because they are inherent in all of the offences charged. Smith v. State, 620 So. 2d 187 (Fla.1993); Gordon v. State, 599 So. 2d 1048 (Fla. 5th DCA 1992). However, the sentencing guidelines which became effective on January 1, 1994 changed the law and allow a court to enhance based on an element of the offense. Capers v. State, 678 So.…
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Rendon v. State, 690 So. 2d 645 (Fla. 4th DCA 1997)…ture is impermissible on that basis alone under Mis-chler. EFFORTS TO COVER UP CRIME While avoiding detection is an inherent feature of the crime of leaving an accident, efforts to cover up a crime are also common to all crimes. In Smith v. State, 620 So. 2d 187 (Fla.1993), our supreme court held that a defendant’s efforts to cover up a crime do not justify a sentencing guidelines departure.1 See also State v. Varner, 616 So. 2d 988 (Fla.1993). The continued vitality of Smith’s blanket pronouncement must be…1 / 2
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Connelly v. State, 704 So. 2d 590 (Fla. 4th DCA 1997)…Second, the trial court found that Appellant’s efforts to cover up the commission of the murder justified departure. However, a defendant’s efforts to cover up a crime will not justify a departure from the sentencing guidelines. See Smith v. State, 620 So. 2d 187 (Fla.1993). Third, the trial court found that the excessive brutality of the crime justified departure. The main question here is whether the excessive brutality of the co-defendants can be imputed to Appellant. We cannot find that the acts of a co…
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- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- State v. Paris D. Varner, 616 So. 2d 988 (Fla. 1993)
- Smith v. State, 604 So. 2d 944 (Fla. 1st DCA 1992)
- Scott v. State, 604 So. 2d 944 (Fla. 1st DCA 1992)