ROBERT V. GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in departing upward from the sentencing guidelines based on the victim's vulnerability due to prior medical treatment and the prolonged nature of her death, as these factors were either inherent to the crime or not sufficiently proven.
[1] A trial court may depart from recommended sentencing guidelines only when circumstances or factors reasonably justify aggravating or mitigating the sentence.
[2] Facts supporting a departure sentence must be proven by a preponderance of the evidence.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of second-degree murder with a firearm. The state sought an upward departure sentence, arguing the victim was vulnerable d…
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SHAHOOD, Judge.
Appellant, Robert Green, appeals an upward departure sentence entered after a jury convicted him of second degree murder with a firearm. We reverse and remand.
At Green’s trial for the murder of his estranged wife, the doctor who performed the autopsy testified that, after being shot, the victim remained hospitalized for nineteen days where her condition deteriorated and she ultimately died of multiple gunshot wounds. The doctor recovered three bullets from the victim’s body, one from her back, one from her buttock area and one from her pelvic area. Further testimony indicated that the victim had been treated for cervical cancer five years prior to the shooting, but was considered cured. While the doctor acknowledged that the victim had permanent radiation injury on her intestines and her bowel from the cancer treatment and agreed that her total physical condition might have been somewhat compromised as a result, he stated that he did not think the radiation injury was a major factor in causing her death.
At the sentencing hearing, the state sought an upward departure from the twenty-one and one-half year maximum sentence based on emotional trauma of the victim and her vulnerability as a result of the radiation treatment. The trial court sentenced Green to forty years in prison. As reasons for the upward departure, the court stated the following:
First, Mrs. Green suffered a prolonged and lingering death as a direct result of the defendant’s criminal actions. And, related to that, Mrs. Green was in a vulnerable position due to her medical history that made her more susceptible to death from misconduct. The defendant was aware of that situation.
On appeal, Green argues that both of the trial court’s reasons for departure are invalid. We agree.
“The recommended guidelines sentence provided by the total sentence points is assumed to be appropriate for the offender.” § 921.0016(l)(a), Fla.Stat. (1993). Courts should avoid imposing sentences which depart from the recommended guidelines sentence unless there are circumstances or factors that reasonably justify aggravating or mitigating the sentence. Fla.R.Crim.P. 3.701(d)(ll) (1995); see Galletti v. State, 646 So. 2d 829, 830 (Fla. 4th DCA 1994). When the court imposes a departure sentence, the facts which support departure must be prov en by a preponderance of the evidence. Wray v. State, 639 So. 2d 621, 628 (Fla. 4th DCA 1994); Fla.R.Crim.P. 3.701(b)(6). Departure cannot be based on reasons which are already factored into the guidelines scoresheet or are inherent components of the crime. State v. Mischler, 488 So. 2d 523 (Fla.1986) superseded by statute on other grounds.
The court’s first departure reason, vulnerability based on physical disability, does not justify departure in the instant case. Section 921.0016(3)(j), Florida Statutes (1993), provides for departure from the sentencing guidelines if “[t]he victim was especially vulnerable due to age or physical or mental disability.” The only evidence offered to support the departure in the case at bar was the doctor’s testimony, which did not establish by a preponderance of the evidence that the victim’s prior medical history and consequent radiation injury made her more susceptible to death from multiple gunshot wounds than any other person. See Grant v. State, 586 So. 2d 438 (Fla. 1st DCA 1991); see also Wemett v. State, 567 So. 2d 882 (Fla.1990).
The second reason for departure, the victim’s “prolonged and lingering death,” is likewise invalid based on the facts in this case. Section 921.0016(3)(Z), Florida Statutes (1993), justifies a departure sentence in cases in which “[t]he victim suffered extraordinary physical or emotional trauma or permanent physical injury, or was treated with particular cruelty.” (emphasis supplied). The court cannot justify departure on trauma which is the same trauma suffered by all victims of that particular crime. State v. Rousseau, 509 So. 2d 281 (Fla.1987). Death is an inherent component in the crime of murder, and one which is already factored into the sentencing guidelines. The state in this case did not prove by a preponderance of the evidence that the victim suffered extraordinary physical or emotional trauma, as required by the statute. The fact that the victim died nineteen days after the shooting, alone, does not justify departure.
We, therefore reverse and remand for re-sentencing within the guidelines. Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
REVERSED AND REMANDED.
WARNER and PARIENTE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998)…sonably justify the aggravation or mitigation of the sentence. The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a preponderare of the evidence. (emphasis added); see also Green v. State, 662 So. 2d 748, 749-50 (Fla. 4th DCA 1995); State v. Chandler, 668 So. 2d 1087, 1088 (Fla. 1st DCA 1996). At the pre-plea and the sentencing hearings, appellee presented only legal argument to support his proposed departure grounds; the state vigorously objected…
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State v. Arvinger, 751 So. 2d 74 (Fla. 5th DCA 1999)…by Judge Swigert. REVERSED; REMANDED for resen-tencing pursuant to the guidelines. PETERSON and THOMPSON, JJ., concur. . See Pease v. State, 712 So. 2d 374 (Fla.1997) (failure to file written reasons not reversible error). . See Green v. State, 662 So. 2d 748 (Fla. 4th DCA 1995). . See State v. Spioch, 706 So. 2d 32 (Fla. 5th DCA 1998).…
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Garner v. State, 729 So. 2d 990 (Fla. 5th DCA 1999)…e also, Wemett v. State, 567 So. 2d 882 (Fla.1990), superceded by stat., Capers v. State, 670 So. 2d 967 (Fla. 1st DCA 1995). The level of proof to establish facts supporting a departure sentence is the preponderance of the evidence. Green v. State, 662 So. 2d 748 (Fla. 4th DCA 1995). Further, where more than one reason is cited for departure, it can be upheld if at least one of the reasons is valid. § 921.001(6), Fla. Stat. Departure is permitted if the offense is one of violence and it is committed in a ma…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Wemett v. State, 567 So. 2d 882 (Fla. 1990)
- Wray v. State, 639 So. 2d 621 (Fla. 4th DCA 1994)
- Wilberto Q. Galletti v. State, 646 So. 2d 829 (Fla. 4th DCA 1994)
- Grant v. State, 586 So. 2d 438 (Fla. 1st DCA 1991)