ANDREW J. ROSEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Roseman appealed his 25-year departure sentence for armed robbery, challenging the trial court's reasons for departing from the 12-17 year guideline range. The appellate court affirmed the sentence despite finding some of the trial court's stated reasons invalid, because valid reasons independently supported the departure.
The appellate court affirmed the 25-year departure sentence because valid reasons supported the departure even though some of the trial court's stated reasons were invalid. The short time between parole release and reoffending (11 months) and the escape from custody were valid departure reasons that independently justified the sentence.
[1] A relatively short time between a defendant's release on parole and the commission of subsequent offenses is a valid reason for departure from sentencing guidelines.
[2] An inherent component of a crime cannot be relied upon as a valid reason for departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“An inherent component of the crime for which defendant is sentenced cannot also be relied upon as a valid reason for departure.”
Establishes that elements inherent to the crime itself cannot justify departure from sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceDefendant Roseman was released on parole after serving 13 years on a 99-year sexual battery sentence. Eleven months after his release, he committed ar…
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ORFINGER, Judge.
In departing from the recommended guidelines sentence of 12 to 17 years’ imprisonment and ordering that defendant be incarcerated for 25 years, the trial court relied on both valid and invalid reasons. We will summarize the reasons given.
(1) The relatively short time [11 months] between defendant’s release on parole after serving 13 years on a 99 year sexual battery sentence and the commission of the instant offenses. A relatively short amount of time between release and the commission of subsequent crimes is a valid reason for departure. White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986). Eleven months between release and commission of an offense is not too long a gap to be a valid ground for departure. Hogan v. State, 12 F.L.W. 2375 (Fla. 1st DCA Oct. 7, 1987).
(2) Threats on the life of the victim of the armed robbery. The taking of money or property from a victim by “force, violence, assault, or putting in fear” is an inherent element of the crime of robbery. § 812.13, Fla.Stat. (1985). An inherent component of the crime for which defendant is sentenced cannot also be relied upon as a valid reason for departure. State v. Cote, 487 So. 2d 1039 (Fla.1986); Williams v. State, 500 So. 2d 604 (Fla. 5th DCA 1986).
(3) The psychological and emotional harm suffered by the victim. There was no finding by the trial court that the victim’s trauma resulted from extraordinary circumstances not inherent in the crime charged and thus psychological trauma was an invalid reason for departure. State v. Rousseau, 509 So. 2d 281 (Fla.1987).
(4) Defendant’s escape from custody between the time of conviction and the time he was sentenced. Defendant acknowledges the validity of departing based upon unscored subsequent convictions. Safford v. State, 488 So. 2d 141 (Fla. 5th DCA 1986); Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984).
(5) The “avoidance of disparity” objective of the guidelines would be frustrated by giving defendant a guidelines sentence because defendant’s prior record is not adequately addressed by the guidelines. We consider this a statement by the trial judge that departure is necessary based on the valid reasons given in the departure order. Scott v. State, 508 So. 2d 335 (Fla.1987).
Although the trial court relied upon both valid and invalid reasons for departure, our review of the record convinces us beyond a reasonable doubt that the absence of invalid reasons would not have affected the departure sentence. Albritton v. State, 476 So. 2d 158 (Fla.1985). See Hall v. State, 517 So. 2d 692 (Fla.1988).
AFFIRMED.
SHARP, C.J., and DAUKSCH, J., concur.
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Fredrick Lloyd Morgan v. State, 527 So. 2d 968 (Fla. 5th DCA 1988)…ises two questions on appeal, that is, whether the trial court erred in departing from the recommended guidelines sentence and whether the trial court erred in imposing costs. The departure sentence is affirmed on the authority of Roseman v. State, 519 So. 2d 1129 (Fla. 5th DCA 1988). On the point raised by the appellant concerning the imposition of costs, this court has been governed by Jones v. State, 513 So. 2d 732 (Fla. 5th DCA 1987). Jones has now been superseded by Harriel v. State, 520 So. 2d 271 (Fla…
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Bailey v. State, 559 So. 2d 604 (Fla. 3d DCA 1990)…son for departure is invalid. Harris v. State, 531 So. 2d 1349 (Fla.1988); Leon v. State, 498 So. 2d 680 (Fla. 3d DCA 1986); Brunson v. State, 492 So. 2d 1155 (Fla. 3d DCA 1986); Smith v. State, 526 So. 2d 1060 (Fla. 1st DCA 1988); Roseman v. State, 519 So. 2d 1129 (Fla. 5th DCA 1988); Salas v. State, 544 So. 2d 1040 (Fla. 4th DCA 1989). For these reasons, we affirm Bailey’s convictions for sexual battery, kidnapping and robbery. We vacate the conviction for possession of a firearm during the commission of a…
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Strawn v. State, 576 So. 2d 877 (Fla. 5th DCA 1991)…e to a bank teller, and a threat to the life of a victim is inherent in the crime of armed robbery. The taking of money from a victim by “force, violence, assault, or putting in fear” is an inherent element of the crime of robbery. Roseman v. State, 519 So. 2d 1129, 1130 (Fla. 5th DCA 1988). The use of a mask during the robberies, the seventh reason, might be valid, but it is not in the instant case. Section 775.0845, Florida Statutes, provides for enhanced punishment when crimes are committed while using a m…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Scott v. State, 508 So. 2d 335 (Fla. 1987)
- J.I. Case Co. v. Henley, 517 So. 2d 692 (Fla. 1988)
- Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984)
- White v. State, 481 So. 2d 993 (Fla. 5th DCA 1986)
- Safford v. State, 488 So. 2d 141 (Fla. 5th DCA 1986)
- Williams v. State, 500 So. 2d 604 (Fla. 5th DCA 1986)