JAMES A. HUDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that reasons for upward departure sentence were inherent in other offenses and thus could not support a departure.
[1] A trial court may not impose an upward departure sentence based on factors that are inherent in the offense of conviction or already accounted for in the sentencing guide…
[2] A victim's status as a law enforcement officer cannot serve as a basis for an upward departure sentence if that status is an element of another offense for which the defe…
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Join FLexlaw to unlock all legal intelligenceDefendant pled no contest to aggravated assault on a law enforcement officer, kidnapping, and escape. The trial court imposed an upward departure sent…
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KLEIN, Judge.
Appellant, while attempting to escape incarceration, assaulted and kidnapped a law enforcement officer. He appeals an upward departure sentence which was imposed after he pled no contest to aggravated assault on a law enforcement officer, kidnapping, and escape.
The trial court imposed guideline sentences on the charges of aggravated assault on a law enforcement officer and escape, and an upward departure sentence under the kidnapping count, which was the primary offense, stating as reasons sections 921.0016(3)(h) and 921.0016(3)(o), Florida Statutes (1993).
Section 921.0016(3)(h) provides:
The defendant knew the victim was a law enforcement officer at the time of the offense; the offense was a violent offense; and that status is not an element of the primary offense.
Section 921.0016(3)(o) provides:
The offense was committed in order to prevent or avoid arrest, to impede or prevent prosecution for the conduct underlying the offense, or to effect an escape from custody.
Appellant argues, and we agree, that the court erred in entering an upward departure sentence on the kidnapping charge. The first reason the court used, the fact that the victim was a law enforcement officer, was inherent in one of the other offenses, aggravated assault on a law enforcement officer. Where aggravated assault is committed on a law enforcement officer, the offense is increased from a third degree felony to a second degree felony, section 784.07(2)(c), Florida Statutes (1993). The second reason used for departure, that the kidnapping was committed in order to escape, was inherent in the offense of which he was convicted and sentenced.
Because the factors regarding the law enforcement officer and the escape were already taken into account in calculating the guidelines score, they cannot support a departure. State v. Mischler, 488 So. 2d 523 (Fla.1986), citing Hendrix v. State, 475 So. 2d 1218 (Fla.1985). We therefore reverse and remand for imposition of a guidelines sentence on the kidnapping conviction.
PARIENTE and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rendon v. State, 690 So. 2d 645 (Fla. 4th DCA 1997)…®, Fla.Stat. (1993). On the other hand, the guidelines expressly prohibit departure based on the victim’s law enforcement status where the victim’s status is an inherent feature of the crime. 678 So. 2d at 332; § 921.0016(3)(h); see Hudson v. State, 672 So. 2d 575 (Fla. 4th DCA), review denied, 678 So. 2d 1288 (Fla.1996). Relevant to this case, the guidelines do not expressly permit departure based on “avoiding detection.” Because efforts to avoid detection are an inherent component of the crime of leaving t…
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Quinn Davis v. State, 700 So. 2d 130 (Fla. 4th DCA 1997)…it departure for escape, the trial court did not err in departing on that basis.1 We find the other issues raised by appellant do not merit discussion and affirm. GLICKSTEIN, KLEIN and SHAHOOD, JJ., concur. . Our decision in Hudson v. State, 672 So. 2d 575 (Fla. 4th DCA), rev. denied, 678 So. 2d 1288 (Fla. 1996), involving a defendant involved in the same escape attempt as this appellant, held to the contrary, but was prior to Capers and has been overruled by it.…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)