DEREK L. KAUFMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Derek Kaufman appeals his convictions for first degree murder and conspiracy to commit first degree murder. The court affirms both convictions and the sentences, including an upward departure sentence for conspiracy, finding that Kaufman's unscoreable capital felony conviction adequately justified the departure.
The court affirms the convictions and sentences. A defendant's conviction of an unscoreable capital felony is sufficient to justify an upward departure in sentencing. Using a first degree murder conviction as a basis for departing upward from a conspiracy sentence does not violate double jeopardy because first degree murder and conspiracy to commit first degree murder are separate offenses with distinct sentencing considerations.
[1] A conviction of an unscoreable capital felony is a sufficient ground to justify an upward departure in sentencing.
[2] When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld if at least one circumstance or factor justifies the departur…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure.”
Establishes the legal standard that one valid departure reason is sufficient, even if other reasons fail.
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Join FLexlaw to unlock all legal intelligenceKaufman was tried by jury and convicted of first degree murder and conspiracy to commit first degree murder in the death of Bobby Kent. The trial cour…
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STEVENSON, Judge.
Appellant, Derek Kaufman, was tried by jury and convicted of first degree murder and conspiracy to commit first degree murder. We affirm the convictions and sentences and write only to address the trial court’s imposition of a departure sentence for the conspiracy conviction.
The trial court relied upon three separate grounds to support its imposition of an upward departure sentence for the conspiracy to commit first degree murder conviction: (1) appellant’s conviction of an unseoreable capital felony; (2) excessive brutality; and (3) an elaborate cover-up scheme. Because we find the first ground, the conviction of an unscoreable capital felony, sufficient to support the departure sentence, we need not address the remaining grounds. § 921.001(6), Fla. Stat. (1993)(‘When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure.”); Moore v. State, 634 So. 2d 214, 215 (Fla. 4th DCA 1994)(“If one of the reasons for departure is valid, the departure sentence should be affirmed.”).
On more than one occasion the Florida Supreme Court has held that a defendant’s conviction of an unscoreable capital felony is sufficient to justify an upward departure in sentencing. Bedford v. State, 589 So. 2d 245 (Fla.1991), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992); Torres-Arboledo v. State, 524 So. 2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988).
Kaufman has suggested on appeal that the use of his unscoreable first degree murder conviction as a ground for departure violates double jeopardy principles. The argument is that since the sentence imposed for a conspiracy conviction looks to the act which the defendant conspired to commit, Kaufman’s act of murder has already been considered in determining the appropriate sentence for the conspiracy conviction. § 777.04(4)(e), Fla. Stat. (1993).
We reject this position. The presumptive sentence for a conspiracy conviction does not take into account whether the act was completed.
First degree murder and conspiracy to commit first degree murder are two separate offenses. § 777.04(3), Fla. Stat. (1993); § 782.04(l)(a)l, Fla. Stat. (1993). Kaufman’s sentence for first degree murder punishes the physical acts that caused the death of Bobby Kent while his sentence for conspiracy to commit first degree murder punishes the planning and agreement with his co-conspirators to effectuate Kent’s death.
AFFIRMED.
DELL, J., and COSTELLO, DEDEE S., Associate Judge, concur.
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Cited By
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Jones v. State, 804 So. 2d 551 (Fla. 3d DCA 2002)…he principal offense at conviction was first degree murder, which is an unscora-ble offense. This is a valid reason for sentencing departure and the trial court so stated. See Benedith v. State, 717 So. 2d 472, 475 n. 3 (Fla.1998); Kaufman v. State, 696 So. 2d 1214, 1214-15 (Fla. 4th DCA 1997). The validity of this departure reason has not been attacked on this appeal. On the aggravated battery count and the armed robbery counts, the trial court sentenced the defendant to the legal maximum. The sentences were…
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Lehning v. State, 266 So. 3d 840 (Fla. 2d DCA 2019)…a. 2d DCA 2002); Desmond v. State, 576 So. 2d 743 (Fla. 2d DCA 1991); Budd v. State, 477 So. 2d 52 (Fla. 2d DCA 1985); McMillan v. State, 832 So. 2d 946 (Fla. 5th - 2 - DCA 2002); Hart v. State, 761 So. 2d 334 (Fla. 4th DCA 1998); Kaufman v. State, 696 So. 2d 1214 (Fla. 4th DCA 1997). KELLY, MORRIS, and SLEET, JJ., Concur.…
Authorities Cited
- Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988)
- Bedford v. State, 589 So. 2d 245 (Fla. 1991)
- Ohio Power Co. v. Thomas, 488 U.S. 901 (U.S. 1988)
- Gen. Elec. Co. v. United States, 488 U.S. 901 (U.S. 1988)
- Moore v. State, 634 So. 2d 214 (Fla. 4th DCA 1994)
- Marino v. United States, 503 U.S. 1009 (U.S. 1992)
- Bedford v. Florida, 503 U.S. 1009 (U.S. 1992)