Bulger v. State, 88-706
| Decision Date | 18 January 1989 |
| Docket Number | No. 88-706,88-706 |
| Citation | 537 So.2d 672,14 Fla. L. Weekly 232 |
| Parties | 14 Fla. L. Weekly 232 Michael Ray BULGER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender and Maria Ines Suber, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., Tallahassee, for appellee.
Michael Ray Bulger appeals from a second amended judgment and sentence in which the trial court, upon remand from Bulger's first appeal, imposed the original departure sentence based upon the one valid reason upheld by this court. We hold that the trial court abused its discretion and reverse and remand for resentencing within the recommended guidelines range.
Bulger plead nolo contendere to second degree murder and shooting into an occupied vehicle. In the early morning hours, Bulger and a co-defendant were involved in a physical altercation with the victim and the bouncer of the Green Frog nightclub in front of the club which was located on Okaloosa Island in the Ft. Walton Beach area. Bulger and the co-defendant left the club and later returned to the area of the Green Frog with a twelve-gauge shotgun, driving in the co-defendant's truck with Bulger as the passenger. The bouncer saw them drive past the club and he and the victim began to follow them in the bouncer's jeep. The co-defendant made a u-turn on Highway 98 and drove back towards the nightclub. The bouncer continued to follow and as he tried to pass the truck in the right lane of the four lane highway, Bulger fired a shotgun blast through the left rear side window of the jeep, striking the victim in the head and injuring the bouncer. The bouncer drove to a hospital where the victim eventually died.
Bulger was convicted of second degree murder and shooting into an occupied vehicle, and the trial court departed from the recommended guidelines range of 12-17 years by sentencing Bulger to life imprisonment for the murder and 15 years for shooting into an occupied vehicle, stating as reasons that: (1) Bulger's conduct posed an extreme risk to the physical safety of other citizens; and, (2) he returned to the area of the confrontation with a weapon. On appeal, this court invalidated the second reason but found the first reason valid and supported by the record, and remanded for resentencing, pursuant to Albritton v. State, 476 So.2d 158 (Fla.1985). Bulger v. State, 509 So.2d 1269 (Fla. 1st DCA 1987).
Upon remand and without conducting a hearing, the trial court entered an amended judgment and sentence, imposing the original sentence. Bulger filed a motion to vacate and set aside the sentence and/or a motion to correct an illegal sentence, asserting as grounds for the motion that the trial court failed to return him from prison for resentencing and failed to conduct an evidentiary hearing in accordance with Albritton. Bulger also asserted in his motion that this court, in finding the one reason for departure to be valid and supported by the record, apparently relied upon the state's brief in which the state erroneously led this court to believe that the roadside was replete with bars and other establishments. Bulger was prepared to present evidence to support a contention that the shooting occurred on a deserted stretch of highway.
At the hearing for resentencing Bulger offered into evidence the affidavit of Investigator James Graham, who essentially stated that the closest establishment from the location of the shooting was approximately one mile. Bulger argued that the state did not meet the clear and convincing standard for a departure based upon unnecessary risk of harm. The state argued that the area in which the shooting occurred was a four lane, heavily travelled highway between Destin and Fort Walton Beach and sixty seconds from the nearest public lodging establishment, and that the driver of the...
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Hernandez v. State, 94-2084
...not by itself demonstrate flagrant disregard for the safety of others. See Anthony v. State, 524 So.2d 655 (Fla.1988); Bulger v. State, 537 So.2d 672 (Fla. 1st DCA 1989). There are no facts in the instant case which establish that persons other than the intended victim were placed at extrao......
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Herrera v. State, 89-2242
...see State v. Rousseau, 509 So.2d 281 (Fla.1987); (2) unreasonable risk of injury to others on a public street, see Bulger v. State, 537 So.2d 672 (Fla. 1st DCA 1989); or (3) obtaining new identification documents after commission of the offenses, See Patten v. State, 531 So.2d 203 (Fla. 2d ......
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Simpson v. State, BJ-453
...and made this reason invalid also. Specifically, defendant argues that Anthony v. State, 524 So.2d 655 (Fla.1988), and Bulger v. State, 537 So.2d 672 (Fla. 1st DCA 1989), make it clear that shooting at someone in an area where others may be endangered is not a valid reason for departure, an......