Baker v. State
Decision Date | 26 March 1985 |
Docket Number | No. 84-1384,84-1384 |
Citation | 10 Fla. L. Weekly 852,466 So.2d 1144 |
Parties | 10 Fla. L. Weekly 852 Terence A. BAKER, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Harold Mendelow, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Jacki B. Geartner, Asst. Atty. Gen., for appellee.
Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
The day began when Baker dropped the paint cans and ran because some store employees interrupted his unlawful asportation of ten gallons of paint. When Baker was caught by a uniformed police officer acting in the line of duty, he wrestled the officer to the ground, picked up the officer's gun, shot the officer, and fled with the officer's gun. The day ended with Baker a man with no prior criminal record, being charged with a life felony (attempted first-degree murder) and six third-degree felonies, namely, burglary of the paint store, theft of the paint, resisting arrest with violence, battery on a law enforcement officer, unlawful possession of a firearm while engaged in a criminal offense, and theft of the officer's gun.
Baker pleaded guilty to all the charges. The recommended sentence under the sentencing guidelines was twelve to seventeen years in prison. 1 When the trial court imposed a sentence of thirty-four years, Baker appealed.
Baker contends that the reasons given by the trial court for departing from the sentence recommended under the guidelines do not justify the departure. The trial court's stated reasons for departure were five in number:
1. The act was done in a willful, aggressive and premeditated manner.
2. The act was done during the commission of a theft and burglary.
3. The act was committed for pecuniary gain.
4. The victim did not provoke the defendant's actions.
5. The victim was a uniformed police officer.
It is well established that an inherent component of the crime, being already built into the guideline range, will not justify a guideline departure. See Bowdoin v. State, 464 So.2d 596 (Fla. 4th DCA 1985) ( ); Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984) ( ). Thus, that the act of attempted first-degree murder was unprovoked and done in a "willful, aggressive, and premeditated manner," common ingredients of all attempted first-degree murders, are not proper reasons for departure.
Likewise, that the act (referring to the act of attempted first-degree murder, that is, the primary offense) was committed "for pecuniary gain" and "done during the commission of a theft or burglary" are not justifiable reasons for departing from the guidelines. The burglary and theft were, as we have noted, see n. 1 supra, additional offenses at conviction for which points were already assessed against the defendant. Were these, or any, underlying or additional offenses again used to support guideline departure, then departure would be justified in any instance where multiple offenses are charged. Otherwise stated, the fact that the additional offenses were committed along with the primary offense is, as the guidelines already state, a reason to increase the score on the defendant's guideline scoresheet, but not a reason to aggravate the defendant's sentence outside of the guidelines.
We come now to the trial court's statement that the victim was a uniformed police officer. While we have found no Florida case directly holding that this reason can justify a sentence in excess of the recommended guidelines, the fact that a law enforcement officer is the victim of the crime has been held to justify the crime being elevated to a higher degree, see, e.g., Ex parte Murry, 455 So.2d 72 (Ala.1984) ( ), and affords a rational basis for the reclassification of a crime to a higher offense, see, e.g., Street v. State, 383 So.2d 900 (Fla.1980) ( ); Landrau v. State, 365 So.2d 695 (Fla.1978) (same); Soverino v. State, 356 So.2d 269 (Fla.1978) (same). Again, where the victim of a killing is a law enforcement officer on active duty, that fact is properly considered an aggravating circumstance supporting the imposition of the death penalty. See Jones v. State, 440 So.2d 570 (Fla.1983) ( ); Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982); see also Ex parte Dobard, 435 So.2d 1351 (Ala.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984) ( ); Calhoun v. State, 297 Md. 563, 468 A.2d 45 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984) ( ); Tichnell v. State, 297 Md. 1, 468 A.2d 1 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984) (same).
There thus appears to be little question that "[t]here is a special interest in affording protection to ... public servants who regularly must risk their...
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