Bowdoin v. State
| Decision Date | 20 February 1985 |
| Docket Number | No. 83-2764,83-2764 |
| Citation | 10 Fla. L. Weekly 472,464 So.2d 596 |
| Parties | 10 Fla. L. Weekly 472 Robert Leon BOWDOIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ben W. Grigsby, Fort Lauderdale, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant seeks reversal of a conviction of robbery with a deadly weapon and sentence to eight years' incarceration. We have considered all three of the appellate points presented and find only one has any merit, that being the departure from the sentencing guidelines.
At trial appellant presented witnesses who testified to an alibi, that appellant was at home having dinner and watching television during the time of the robbery. In the sentencing phase of the case the trial court had available a presentence report that indicated appellant had used marijuana during his high-school years. In sentencing appellant the trial court departed from the sentencing guidelines and the indicated term of four years' incarceration, and sentenced appellant to eight years' incarceration. The stated reasons for deviation were appellant's prior use of marijuana, his use of a gun in the commission of the crime, and his lying under oath in claiming an alibi.
We hold none of the enumerated factors relied upon in this case justified the departure from the guidelines and, thus, the departure constitutes an abuse of discretion. The use of a firearm was already factored into the presumptive sentence. Callaghan v. State, 462 So.2d 832 (Fla. 4th DCA 1984). The use of marijuana during his high-school days was not a circumstance surrounding the offense. Fla.R.Crim.P. 3.701(b)(3). Finally, as appellant puts it, "it is apparent [from the judge's colloquy] that the Trial Court intended to punish this defendant in that he believed that a defensive alibi that fails because of conviction by a jury ... is tantamount to prove that the defendant and/or his witnesses have lied." To depart from the guidelines because the jury did not "buy" a defendant's defense is somewhat analogous to enhancing a defendant's sentence because he shows no remorse when all the while he maintained he was innocent. That enhancement practice has been condemned. Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984).
For the foregoing reasons we affirm the judgment of conviction, but reverse the sentence and remand the...
To continue reading
Request your trial
-
People v. Adams
...was considered. Beauvais v. State, 475 So.2d 1342 (Fla.App., 1985); Trainor v. State, 468 So.2d 484 (Fla.App., 1985); Bowdoin v. State, 464 So.2d 596 (Fla.App., 1985).4 I therefore agree that the justice system should not "hold harmless the creation of a wholly fabricated defense." P. 445. ......
-
Hall v. State
...Baldwin v. State, 494 So.2d 503 (Fla. 4th DCA 1986); Whitfield v. State, 490 So.2d 1358 (Fla. 5th DCA 1986); Bowdoin v. State, 464 So.2d 596 (Fla. 4th DCA 1985). The nature of the weapon used, or even the fact that it causes injury, is not a valid reason to deviate from the guidelines, but ......
-
Beauvais v. State
...2d DCA 1985); Hunt v. State, 468 So.2d 1100 (Fla. 1st DCA 1985); Trainor v. State, 468 So.2d 484 (Fla. 2d DCA 1985); Bowdoin v. State, 464 So.2d 596 (Fla. 4th DCA 1985); see Daytona Beach v. Del Percio, 476 So.2d 197, (Fla. 1985); Garcia v. State, 466 So.2d 1211 (Fla. 4th DCA 1985); Sarvis ......
-
Baker v. State
...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) (use of gun inherent component of robbery with a deadly weapon); Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984) (premedita......