Bunney v. State, 89-01781
| Decision Date | 24 May 1991 |
| Docket Number | No. 89-01781,89-01781 |
| Citation | 579 So.2d 880 |
| Parties | Gerald Wayne BUNNEY, Appellant, v. STATE of Florida, Appellee. 579 So.2d 880, 16 Fla. L. Week. D1408 |
| Court | Florida District Court of Appeals |
Stevan T. Northcutt of Levine, Hirsch, Segall & Northcutt, P.A., Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Stephen A. Baker, Asst. Atty. Gen., Tampa, for appellee.
The defendant, Gerald Wayne Bunney, was convicted after a jury trial, of first degree murder and kidnapping. These offenses occurred on September 23, 1988. For the murder, he was sentenced to life imprisonment with a mandatory sentence of 25 years. For the kidnapping, he was sentenced to a consecutive term of life imprisonment, an upward departure from the recommended guidelines sentence of five and one-half to seven years. We affirm his convictions and sentences.
On appeal, the defendant raises four points, only two of which merit discussion. First, he challenges the trial court's refusal to allow into evidence testimony regarding an alleged epileptic condition. We think that in the absence of a plea of insanity from the defendant, the trial court properly excluded the testimony under Chestnut v. State, 538 So.2d 820 (Fla.1989).
Second, the defendant contends that the trial court erred in imposing a departure sentence for the kidnapping conviction. The trial judge scored twenty-four points for death or severe injury. He then departed from the recommended range, giving as his reason that "the scoresheet fails to take into consideration defendant also stands convicted of murder in the first degree arising out of the same criminal episode." The defendant argues that this was error because the trial judge departed based on a consideration already factored into the presumptive sentence. We disagree. 1
Hansbrough v. State, 509 So.2d 1081 (Fla.1987), and Livingston v. State, 565 So.2d 1288 (Fla.1988), hold that a contemporaneous conviction of an unscored capital felony is a valid reason for departure. We recognize that those decisions preceded the 1987 amendment which states that victim injury during a criminal episode or transaction is scoreable for offenses occurring after July 1, 1987. Florida Rules of Criminal Procedure re Sentencing Guidelines Rules (3.701 and 3.988), 509 So.2d 1088 (Fla.1987). Nevertheless, we find Hansbrough and Livingston controlling.
Accordingly, we affirm the defendant's convictions and sentences. H...
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Bunney v. State
...Gen., and Stephen A. Baker and Peggy A. Quince, Asst. Attys. Gen., Tampa, for respondent. HARDING, Justice. We review Bunney v. State, 579 So.2d 880 (Fla. 2d DCA 1991), in which the Second District Court of Appeal certified the following question as one of great public IN SENTENCING FOR A F......
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Frazier v. State, 92-01779
...a past failure at rehabilitation and an escalating pattern of criminality. See Livingston v. State, 565 So.2d 1288 (Fla.1990; Bunney v. State, 579 So.2d 880 (Fla. 2d DCA 1991. "When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when ......
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McLendon v. State, 89-00156
...CURIAM. We affirm the judgments and sentences in this case, including the departure from the sentencing guidelines. See Bunney v. State, 579 So.2d 880 (Fla. 2d DCA 1991). As in Bunney, we certify to the Florida Supreme Court the following question of great public IN SENTENCING FOR A FELONY ......