Byrd v. State, 87-0926
Decision Date | 09 December 1987 |
Docket Number | No. 87-0926,87-0926 |
Citation | 12 Fla. L. Weekly 2781,516 So.2d 107 |
Parties | 12 Fla. L. Weekly 2781 Frank BYRD, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Diane E. Leeds, Asst. Atty. Gen., West Palm Beach, for appellee.
We reverse the order sentencing appellant outside the guidelines. On remand from this court's first consideration of this case in Byrd v. State, 503 So.2d 434 (Fla. 4th DCA 1987), the trial court justified upward departure on the fact that "[t]he offense committed by this Defendant was extremely heinous in that the victim in this case was an eighty-six (86) year old, frail, blind person."
Neither advanced age alone, Knowlton v. State, 466 So.2d 278, 280 (Fla. 4th DCA), rev. denied, 476 So.2d 675 (Fla.1985), nor the victim's helplessness or vulnerability to criminal activity, Williams v. State, 492 So.2d 1308 (Fla.1986), are sufficient as clear and convincing reasons for an upward departure from the guidelines sentences. But cf. Von Carter v. State, 468 So.2d 276 (Fla. 1st DCA) (, )remanded on other grounds, 478 So.2d 1071 (Fla.1985).
In our view, there must be some additional element to justify departure such as the fact that the defendant stood in a position of trust with the victim, Stewart v. State, 489 So.2d 176 (Fla. 1st DCA 1986), or that the degree of suffering from physical or psychological injury was increased by reason of the advanced age, frailty or helplessness. Knowlton, 466 So.2d at 280.
Accordingly, the sentence is reversed and this cause is remanded for resentencing within the guidelines.
REVERSED AND REMANDED.
To continue reading
Request your trial-
Wemett v. State
...So.2d 989 (Fla. 1st DCA 1988) (departure valid when elderly woman received substantial injury in a purse-snatching); Byrd v. State, 516 So.2d 107, 108 (Fla. 4th DCA 1987) ("Neither advanced age alone, nor the victim's helplessness or vulnerability to criminal activity are sufficient as clea......
-
Jones v. State, 95-389
...was at home late at night in bed when the defendant shot into her house, or the 86 year-old frail, blind victim in Byrd v. State, 516 So.2d 107, 108 (Fla. 4th DCA 1987). In all of these cases, however, departures based on victim vulnerability 3 were reversed. We must do the same. We certify......
-
Sewall v. State
...without some additional element to justify the departure, such as, the defendant stood in a position of trust. See Byrd v. State, 516 So.2d 107, 108 (Fla. 4th DCA 1987); see also Wemett v. State, 567 So.2d 882, 886-87 (Fla.1990). But even if pre-Capers case law was still applicable, the vic......
-
Greene v. State, 96-04490
...for departure. See Wemett v. State, 567 So.2d 882 (Fla.1990); Taccariello v. State, 664 So.2d 1118 (Fla. 4th DCA 1995); Byrd v. State, 516 So.2d 107 (Fla. 4th DCA 1987); Kipping v. State, 702 So.2d 578 (Fla. 2d DCA 1997); Andrews v. State, 708 So.2d 654, 23 Fla. L. Weekly D897 (Fla. 2d DCA ......