Berry v. State, BM-214
| Decision Date | 26 August 1987 |
| Docket Number | No. BM-214,BM-214 |
| Citation | 511 So.2d 1075,12 Fla. L. Weekly 2076 |
| Parties | 12 Fla. L. Weekly 2076 Raheem James BERRY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Patricia Conners, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant was charged with burglary of a dwelling (Count I) and two counts of battery. He entered a plea of nolo contendere to the burglary of a dwelling and the state dropped the two battery counts. Appellant appeals from his sentence, contending that the reasons given for his upward departure sentence are invalid. We agree that some of the reasons are invalid, and reverse and remand for resentencing.
Appellant entered the victim's residence through a window. The victim, who was in her bedroom, heard a noise, looked up, and saw the appellant standing in the doorway. Appellant jumped on top of the victim in the bed, put his hand over her mouth, and told her that if she made noise he would hurt her. Appellant told the victim that he had been all through the house and knew that her boyfriend was not home. Appellant started caressing the victim's hair. At that time the victim heard her boyfriend's car drive up. She pushed appellant away, jumped from the bed and ran out the bedroom door, closing it behind her. Appellant left the residence, leaving his hat and shoes in the yard. He was apprehended 30 minutes later a few blocks away.
Appellant was sentenced to a term of ten years, a departure from the 12 to 30 month sentence range called for in the sentencing guidelines scoresheet. The trial court gave the following written reasons for departure:
1. Defendant's extensive criminal record convinced the court that the recommended guideline sentence would not adequately protect the public.
2. The Court deplores the plea bargain which dropped the charge from the First Degree Felony punishable by life, i.e. Burglary of a Dwelling with Intent to Commit an Assault, to a Second Degree Felony, i.e. Burglary of Dwelling thus ignoring the most significant facts of this case. [Footnote omitted]. The nature of this burglary was both serious and aggravated considering: a) it was an occupied dwelling, b) the victim was eight months pregnant, c) the Defendant held the victim down on her bed and caressed her, d) but for the fortuitous and timely arrival at the dwelling of the victim's fiance', the Court is convinced a sexual battery would have occurred and e) the guidelines ignore the psychological trauma suffered by the victim and expressed by her in a letter to the Court, a copy of which was furnished to counsel prior to the sentencing. [Footnote omitted].
The trial court's reliance upon the appellant's extensive criminal record along with the conclusion that the guidelines sentence would not adequately protect the public is invalid. A defendant's prior criminal record is already scored in the sentencing guidelines scoresheet and thus cannot support departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985). Further, it has been held that protection of the public is an invalid reason for departure. Young v. State, 489 So.2d 199 (Fla. 2d DCA 1986); Nichols v. State, 504 So.2d 414 (Fla. 1st DCA 1987) (); and Williams v. State, 492 So.2d 1308, 1309 (Fla.1986) ().
The next reason advanced by the trial court:
The Court deplores the plea bargain which dropped the charge from the First Degree Felony punishable by life, i.e. Burglary of a Dwelling with Intent to Commit an Assault, to a Second Degree Felony, i.e., Burglary of Dwelling thus ignoring the most significant facts of this case....
is based upon the erroneous assumption that the appellant was permitted to plead nolo contendere to a lesser included offense of the offense charged in Count I. That was not the case. Contrary to the judge's apparent assumption, the appellant was never charged with a first degree felony punishable by life. He was charged only with burglary of a dwelling, a second degree felony--precisely the offense to which he pled nolo. The information never alleged that the appellant, in the course of committing the burglary, either (a) made an assault or battery upon any person, or (b) was armed. See Section 810.02(2), Florida Statutes. Although the information did allege that the appellant had the intent to commit an assault or battery when he entered or remained in the structure--the intent element which makes a mere trespass a burglary--no actual assault or battery was ever alleged in Count I.
The trial court also relied upon the fact that the dwelling was occupied. Such a reason, under facts analogous to the instant case, was held to be a valid ground for departure in Brooks v. State, 487 So.2d 68, (Fla. 1st DCA 1986:
The first reason provided by the trial court for departure from the guideline sentencing range was that in each instance Brooks entered an occupied dwelling. Brooks contends the fact that the dwellings were occupied is a factor inherent in the crime of burglary, and cannot serve as a basis for departure. See: Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984); Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA 1986). We disagree. Section 810.02(3) contemplates entry of a dwelling or entry of a structure while a human being is in the structure. In this case, Brooks entered three dwellings when the residents of those dwellings were present. We consider that these circumstances added an element not included within the statutory frame, i.e., dwelling and the presence of a human being. Therefore, we consider this reason a valid ground for departure.
The trial court also relied upon the victim's pregnancy as an additional reason for departure. Her pregnancy placed the victim in an unusually vulnerable position and was thus a circumstance justifying departure. See Von Carter v. State, 468 So.2d 276 (Fla. 1st DCA 1985) (); and Hadley v. State, 488 So.2d 162 (Fla. 1st DCA 1986) ().
The next reason for departure, the fact that appellant held the victim down on the bed and caressed her, was specifically the subject of the two battery charges--as is apparent from the allegations of the information--which were nolle prossequied by the state. It has been held that acts constituting offenses which were dropped as part of a plea...
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...guidelines. Carter v. State, 550 So.2d 1130 (Fla. 3d DCA 1989); Orange v. State, 535 So.2d 691 (Fla. 3d DCA 1988); Berry v. State, 511 So.2d 1075 (Fla. 1st DCA 1987). Particularly, when as in this case, the victim's vulnerability is the actual reason why he was selected as a victim, a depar......
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