Bradley v. State
| Decision Date | 23 April 1985 |
| Docket Number | No. BA-10,BA-10 |
| Citation | 468 So.2d 378,10 Fla. L. Weekly 1017 |
| Parties | 10 Fla. L. Weekly 1017 Leroy Steven BRADLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., John Koenig, Jr., Asst. Atty. Gen., for appellee.
Bradley appeals from convictions and sentences for armed robbery and attempted armed robbery. We affirm the convictions, but vacate the sentences and remand for resentencing.
As his only attack against the convictions, Bradley contends the trial court erred in instructing the jury, over objection, on flight as circumstantial evidence of guilt.
The evidence adduced at trial showed Bradley and an accomplice robbed a convenience store in Jacksonville on 27 September 1983. They then walked out of the store, got into a car, and drove away.
Shortly thereafter, a police officer spotted the getaway car two or three miles from the store and went after it. Following a high-speed chase, the car crashed against a telephone pole and the occupants were apprehended. The pursuing officer testified three people were in the car--Bradley on the passenger side of the front seat, a woman in the middle, and another man in the driver's seat.
Flight, as circumstantial evidence of guilt, occurs when a defendant leaves the crime scene under circumstances indicating a sense of fear or guilt, or a desire to avoid arrest. Williams v. State, 268 So.2d 566 (Fla. 3d DCA 1972). Bradley's actions--voluntarily walking out of the store immediately after the robbery and voluntarily getting into a car then driven away from the crime scene and engaged in a high-speed chase with police--are circumstances indicating fear, guilt, and a desire to avoid arrest.
Although Bradley apparently was not driving the getaway car, one need not be in control of the means of flight before one can flee. In Jordan v. State, 419 So.2d 363 (Fla. 1st DCA 1982), for example, a jury instruction on flight was proper where the defendant attempted to flee by jumping onto the back of a car driven by his wife.
Bradley's reliance on Williams v. State, 378 So.2d 902 (Fla. 5th DCA 1980), is misplaced. There, the defendant was convicted of assaulting a hitchhiker while both were passengers in a car driven by a third person. Sheriff's deputies pursued the car for approximately 1/2 mile before it stopped, but it was not clear that the occupants ever attempted to elude the deputies. Williams did not hold that the flight instruction was improper because the defendant was only a passenger in the pursued car.
Bradley next challenges his sentences.
Bradley affirmatively selected sentencing pursuant to the sentencing guidelines. The trial court departed from the recommended guidelines range of 22 to 27 years in prison and imposed consecutive sentences of 30 years in prison on each of two counts of armed robbery and 10 years in prison on one count of attempted armed robbery. The trial court also retained jurisdiction, pursuant to Section 947.16, Florida Statutes (1983), over 1/3 of each sentence. Reasons for departure from the guidelines were provided in writing.
Bradley argues the sentences should be vacated because, in selecting guidelines sentencing, the record does not show he knowingly and intelligently waived his right to parole eligibility. This argument has been uniformly rejected by this Court beginning with Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984). We again reject it, but, as in Cochran v. State, 460 So.2d 542 (Fla. 1st DCA 1984), and Gage v. State, 461 So.2d 202 (Fla. 1st DCA 1984), we certify the following question of great public importance:
When a defendant who committed a crime before 1 October 1983 affirmatively selects sentencing pursuant to the sentencing guidelines, must the record show the defendant knowingly and intelligently waived the right to parole eligibility?
See also, Brown v. State, 464 So.2d 193 (Fla. 1st DCA 1985); Keene v. State, --- So.2d ---- (Fla. 1st DCA 1985) [10 FLW 403].
Bradley also argues the written reasons for departure reflect impermissible considerations and are not clear and convincing. The State contends this issue is not reviewable because Bradley did not make a contemporaneous objection to departure.
A defendant may appeal from a sentence outside the recommended range whether or not he makes a contemporaneous objection. Mitchell v. State, 458 So.2d 10 (Fla....
To continue reading
Request your trial
-
Fenelon v. State
...denied, 476 U.S. 1109, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986); Rodriguez v. State, 528 So.2d 1373 (Fla. 3d DCA 1988); Bradley v. State, 468 So.2d 378 (Fla. 1st DCA 1985), approved, 485 So.2d 1285 (Fla.1986); Brown v. State, 443 So.2d 194 (Fla. 3d DCA 1983). And still other cases indicate tha......
-
Raley v. State, 95-2070
...we vacate the sentencing court's retention of jurisdiction over a portion of Mr. Raley's guidelines sentence. See Bradley v. State, 468 So.2d 378 (Fla 1st DCA 1985), approved, 485 So.2d 1285 In summary, we affirm the trial court's denial of the Mr. Raley's petition for a writ of habeas corp......
-
Shively v. State, 84-1524
...that, in appropriate circumstances, an instruction on flight is proper. See Bundy v. State, 471 So.2d 9 (Fla.1985); Bradley v. State, 468 So.2d 378 (Fla. 1st DCA 1985); Haywood v. State, 466 So.2d 424 (Fla. 4th DCA The facts of this case show that on March 3, 1984, appellant, an eighteen ye......
-
Massard v. State, 84-1741
...of Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984), and consonant with the logic expressed by the second district in Bradley v. State, 468 So.2d 378 (Fla. 1st DCA 1985), rather than simply setting aside the retention, we vacate the sentence and remand for resentencing because "[w]e hesitat......