IRA JOE HARMON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ira Joe Harmon appealed his convictions and sentences for two counts of robbery with a firearm and two counts of aggravated assault. The appellate court affirmed the convictions but reversed and remanded for resentencing because the trial court improperly relied on invalid departure factors and imposed consecutive rather than concurrent mandatory minimum sentences.
The court affirmed the convictions but reversed and remanded for resentencing. The habitual offender status and victims' advanced age were invalid departure reasons, though the timing of the offenses following parole release was valid. Additionally, the mandatory minimums on all four counts must be served concurrently because the offenses arose from one continuous criminal episode.
[1] A defendant's status as a habitual offender is not a valid reason for departing from sentencing guidelines.
[2] The age of robbery victims, without more, is not a valid reason for departing from sentencing guidelines.
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“Harmon's status as a habitual offender is not a valid reason for departure. Whitehead v. State, 498 So.2d 863 (Fla.1987).”
Establishes that habitual offender status cannot justify sentencing departure.
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Join FLexlaw to unlock all legal intelligenceHarmon was convicted of two counts of robbery with a firearm and two counts of aggravated assault. The victims of the robberies were 52 and 67 years o…
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THOMPSON, Judge.
Harmon appeals his convictions and sentences for two counts of robbery with a firearm and two counts of aggravated assault. He raises numerous issues on appeal concerning both his convictions and the sentences imposed; however, we find no error with regard to the convictions, and reverse and remand for resentencing in only two respects.
In sentencing Harmon for the robberies (Counts I and II) the trial court departed from the recommended guidelines sentence of 12 to 17 years incarceration and imposed sentences of 40 and 30 years respectively, with a concurrent 3 year mandatory minimum on each. As reasons for departure the court cited Harmon’s status as a habitual offender, the fact that the robbery victims were of “advanced age” (52 and 67 years old), and the fact that the offenses had been committed shortly after Harmon had been released on parole for a prior robbery conviction. Harmon’s status as a habitual offender is not a valid reason for departure. Whitehead v. State, 498 So. 2d 863 (Fla.1987). Nor is the mere fact that the male victims were 52 and 67 years old a valid reason for departure under Von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA) rev’d. on other grounds 478 So. 2d 1071 (Fla.1985). See also Grant v. State, 12 FLW 236 (Fla. 4th DCA Jan 7, 1987); Hadley v. State, 488 So. 2d 162 (Fla. 1st DCA 1986). The final reason refers to the timing of the instant offenses and is a valid reason for departure. Williams v. State, 504 So. 2d 392 (Fla.1987); Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984). Therefore, we remand for resentencing of the two robbery convictions under Albritton v. State, 476 So. 2d 158 (Fla.1985).
Harmon also urges that the court’s imposition of consecutive 3 year mandatory minimums on the assault counts (Counts III and IV) was improper. We agree. The mandatory minimums of Counts III and IV should be served concurrently to each other and concurrently with the mandatory minimums of Counts I and II. Since the events comprising the offenses arose out of one continuous criminal episode, the mandatory minimums of all four counts must be served concurrent to one another. Palmer v. State, 438 So. 2d 1 (Fla.1983). The sentences should be modified accordingly.
The remaining points raised on appeal are without merit. The case is remanded for resentencing in accordance with this opinion, and in all other respects is affirmed.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
ZEHMER and BARFIELD, JJ., concur.
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Bruton v. State, 510 So. 2d 1243 (Fla. 1st DCA 1987)…Finally, the reasons cannot be supported on the basis of the timing of the offenses relative to his earlier release on parole. The current offenses were committed approximately twenty-two months after his release on parole. Compare Harmon v. State, 506 So. 2d 500 (Fla. 1st DCA 1987). We REVERSE and REMAND for resen-tencing. The trial court having failed in this case to properly depart from the guidelines sentence on two occasions, the trial court, in resentencing the appellant, shall impose sentences within…
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McMILLAN v. State, 516 So. 2d 1064 (Fla. 4th DCA 1987)…nt’s release from prison. These reasons are a valid basis for departure. See Williams v. State, 504 So. 2d 392 (Fla.1987); Brockington v. State, 506 So. 2d 495 (Fla.5th DCA 1987); Shelton v. State, 510 So. 2d 1068 (Fla.2d DCA 1987); Harmon v. State, 506 So. 2d 500 (Fla.1st DCA 1987). The crime in this instance occurred shortly after the defendant’s release from his latest commitment to prison. His most recent conviction was for sexual battery. He twice previously has been convicted of burglary of a dwelling i…
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Johnson v. State, 517 So. 2d 792 (Fla. 3d DCA 1988)…the vulnerability of the victim based on his advanced age [55 to 60 years], his being under the [self-induced] influence of alcohol and his befriending the defendant shortly before his death is an improper reason for departure. See Harmon v. State, 506 So. 2d 500 (Fla. 1st DCA 1987) (fact that robbery victims, males, were 57 and 62 years old was not a valid reason for departure); Williams v. State, 492 So. 2d 1308, 1309 [*794] (Fla.1986) (fact that defendant stabbed victim while she was sleeping and therefor…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984)
- von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985)
- Hadley v. State, 488 So. 2d 162 (Fla. 1st DCA 1986)
- von Carter v. State, 478 So. 2d 1071 (Fla. 1985)