Abt v. State, 4-86-1003

Citation504 So.2d 548,12 Fla. L. Weekly 904
Decision Date01 April 1987
Docket NumberNo. 4-86-1003,4-86-1003
Parties12 Fla. L. Weekly 904 Alan Andrew ABT, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Michael W. Baker, Asst. Atty. Gen., West Palm Beach, for appellee.

STONE, Judge.

The defendant appeals from a conviction and sentence for residential burglary, robbery with a firearm, and carrying a firearm during a felony. We affirm defendant's conviction, but reverse as to sentencing. The state had in its possession two guns found in defendant's luggage during a disputed inventory search. The state did not introduce this evidence during its case in chief, but sought to introduce the guns in rebuttal after the defendant had testified. The defendant's motion to suppress was denied and the guns were admitted. We need not address the issues raised by the motion to suppress.

The guns were admissible in rebuttal as impeachment evidence. In United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), a shirt, obtained in the course of an unlawful search, was admitted into evidence as impeachment in response to the defendant's denials on the stand. See also United States v. Grubbs, 776 F.2d 1281 (5th Cir.1985). In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court noted the many recognized exceptions to the exclusionary rule, and commented that "evidence obtained in violation of the Fourth Amendment and inadmissible in the prosecution's case in chief may be used to impeach a defendant's direct testimony," and that such evidence "may be used to impeach statements made by a defendant in response to proper cross-examination...." Leon, 468 U.S. at 910, 104 S.Ct. at 3414, 82 L.Ed.2d at 690.

Defendant also contends that the evidence was irrelevant. The guns became relevant when the defendant denied their existence. Any error in admitting the guns as indirect evidence that guns were used in the robbery was harmless. See Newman v. State, 196 So.2d 897 (Fla.1967). The evidence against the defendant was overwhelming; he was identified by the victims, he was found driving their car, and was in possession of the victim's wallet and driver's license when he was apprehended.

Appellant also objects to a comment made by the state in final argument. The statement referred to matters in evidence, but even if there was error in permitting the statement, the error was harmless. State v. Murray, 443 So.2d 955 (Fla.1984). Therefore with respect to the foregoing issues, we affirm defendant's conviction.

The trial court departed from the sentencing guidelines in sentencing appellant to twenty-five years state prison, submitting the following reasons for aggravating the sentence:

1. The Defendant was convicted by a jury of two (2) counts of Armed Robbery, one (1) count of Armed Burglary and one (1) count of Possession of a Weapon during the course of a felony. Defendant was on escape status from extended confinement in the state system at the time of these offenses.

2. His past indicates a history of criminal activity of an increasing serious nature. He has graduated from property crimes to crimes involving the threat of armed violence.

3. These crimes have increased in their severity and sophistication. The infliction of intentional emotional trauma of this magnitude to the victims must be severely sanctioned.

4. The instant case involves a purposeful night time intrusion into an occupied residence while armed. His purpose being to terrorize the occupants by threat of violence into handing over their possessions. The intentional nature of the crime demands a departure from the guidelines to punish the defendant and to set an example to the public.

5. The defendant's history indicates failures in the juvenile and adult system. Neither probation, community control, prison nor rehabilitation drug programs have deterred or rehabilitated this person.

The first reason for departure is invalid. See Hannah v. State, 480 So.2d 718 (Fla. 4th DCA 1986).

Reason number two and the first part of reason number three are essentially the same. A history of crimes committed in an escalating pattern in nature and severity can be a valid basis to deviate. See, e.g., Ballard v. State, 501 So.2d 1285 (Fla. 4th DCA 1986); Pittman v. State, 492 So.2d 741 (Fla. 1st DCA 1986). We have considered Williams v. State, 492 So.2d 1308 (Fla.1986), and do not interpret it as applicable to an escalating pattern of conduct, a factor...

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12 cases
  • Robinson v. State, 87-0562
    • United States
    • Court of Appeal of Florida (US)
    • September 14, 1988
    ...1st DCA 1988); Stubbs v. State, 522 So.2d 444 (Fla. 1st DCA 1988). We recognize that an earlier opinion of this court, Abt v. State, 504 So.2d 548 (Fla. 4th DCA 1987), stated that the failure to rehabilitate the defendant was an invalid ground for departure. See also Fain v. State, 488 So.2......
  • Abt v. State
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 1988
    ...EN BANC HERSEY, Chief Judge. This is an appeal of a departure sentence reimposed after we remanded for resentencing in Abt v. State, 504 So.2d 548 (Fla. 4th DCA 1987). On remand the trial judge gave four reasons for his departure from the sentencing 1. The score sheet indicates a sentence r......
  • Schwartz ex rel. Schwartz v. Wilt Chamberlain's, 97-3629
    • United States
    • Court of Appeal of Florida (US)
    • February 10, 1999
    ...not prejudice appellees as the original complaint left "no doubt as to the identity of the defendant intended to be sued." See Francese, 504 So.2d at 548. Accordingly, we reverse and remand to the trial court for further REVERSED AND REMANDED. POLEN, J., and FRUSCIANTE, JOHN A., Associate J......
  • Cox v. State, BM-184
    • United States
    • Court of Appeal of Florida (US)
    • June 23, 1987
    ...and convincing reason for departure...." 500 So.2d at 136. See also Brier v. State, 504 So.2d 809 (Fla. 2d DCA 1987); Abt v. State, 504 So.2d 548 (Fla. 4th DCA 1987); and Hester v. State, 503 So.2d 1342 (Fla. 1st DCA 1987), all making specific reference to defendant's "graduation" or "escal......
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