Bullard v. State, BO-361

• Decision Date: 28 October 1987
• Docket Number: No. BO-361,BO-361
• Citation: 12 Fla. L. Weekly 2477,515 So.2d 1028
• Parties: 12 Fla. L. Weekly 2477 Eston BULLARD, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1028

515 So.2d 1028

12 Fla. L. Weekly 2477

Eston BULLARD, Jr., Appellant, v. STATE of Florida, Appellee.

No. BO-361.

District Court of Appeal of Florida First District.

Oct. 28, 1987.

Rehearing Denied Dec. 8, 1987.

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

BOOTH, Judge.

This cause is before us on appeal from a judgment of conviction entered on a jury verdict of guilty of armed robbery and sentence to life imprisonment with a three-year mandatory minimum. On appeal, the issues are: first, whether the trial court erred in using appellant's habitual offender status as the reason for departure from the sentencing guidelines recommendation of 12 to 17 years; and second, whether the court's instruction on the intent element of robbery constituted fundamental error. We affirm appellant's conviction, but are required to reverse his sentence and remand for resentencing due to the decision of the Supreme Court of Florida in Whitehead v. State, 498 So.2d 863 (Fla.1987).

The facts are that Jacksonville Police Officer Charnita Williams observed appellant walking along a road as she responded to a radio call that there had been a murder in the area. As the officer pulled her car over, appellant walked towards the car with something in his hand. The officer drew her gun and got out of the car as appellant rushed to the rear of the car. After raising his hands, appellant grabbed the officer's wrist and took the gun, pointing it at her. As the officer backed away, appellant got into the marked patrol car and drove away.

Later that day, Nassau County Deputy Sheriff W.G. Dover identified the stolen patrol car exceeding the speed limit and followed it onto a road where he found the car abandoned. Appellant was apprehended after being tracked by a police dog.

The trial court exceeded the guidelines recommendation due to appellant's qualification as a habitual offender. This was error under the holding in Whitehead, supra, wherein the Supreme Court held that habitual offender status is not an adequate reason to depart from the sentencing guidelines. In Brown v. State, 509 So.2d 1164 (Fla. 1st DCA 1987), this court further ruled that conviction of a first-degree felony coupled with a habitual offender status does not require a mandatory sentence of life imprisonment under Section 775.084(4)(a)(1), Florida Statutes. Therefore, we must reverse appellant's sentence and remand for resentencing.

As to the second issue, the trial court charged the jury that the state had to prove appellant's intent to "temporarily" or "permanently" deprive the robbery victim of property. The standard jury instructions do not include the word "temporarily," and robbery requires the specific intent to permanently deprive. Bell v. State, 394 So.2d 979 (Fla.1981). In Hall v. State, 505 So.2d 657 (Fla. 2d DCA 1987), the court found reversible error in a similar instruction where the objection was preserved for appeal. In the case below, there was no timely objection. Therefore, the question is whether the erroneous instruction was fundamental error. See Castor v. State, 365 So.2d 701 (Fla.1978).

In Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), the Third District Court of Appeal held that the omission, without objection, of the intent element from a robbery instruction was harmless and not fundamental error. Williams states the error must involve a critical and disputed issue at trial, holding (400 So.2d at 544-545):

... While there are several broad references to an affirmative duty of the trial court to instruct the jury on the elements of the crime charged [citations omitted], the fact is that every such omission or misstatement which has actually been found to...