Davis v. State

• Decision Date: 23 December 1987
• Docket Number: No. 69019,69019
• Citation: 13 Fla. L. Weekly 5,517 So.2d 670
• Parties: 13 Fla. L. Weekly 5 Marjorie O. DAVIS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 670

517 So.2d 670

13 Fla. L. Weekly 5

Marjorie O. DAVIS, Petitioner, v. STATE of Florida, Respondent.

No. 69019.

Supreme Court of Florida.

Dec. 23, 1987.

Robert Stuart Willis, Offices of Robert Stuart Willis, Jacksonville, for petitioner.

Robert A. Butterworth, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for respondent.

EHRLICH, Justice.

We have for review Davis v. State, 489 So.2d 754 (Fla. 1st DCA 1986), which expressly and directly conflicts with decisions of this Court. We have jurisdiction. Art. V, section 3(b)(3).

Davis was arrested for the shooting death of her husband. Pursuant to a plea agreement with the State, Davis pled guilty to Second Degree Murder, and to Use of a Firearm During the Commission of a Felony. The recommended guidelines sentence for the murder was twelve to seventeen years incarceration. The trial judge exceeded the guidelines sentence by twenty-three years, imposing the statutory maximum sentence of forty years.

Davis appealed the sentence on the ground that the trial court did not express clear and convincing reasons for the departure. The district court found that it was possible to extract the following four reasons for departure from the judge's lengthy written justification: ¹

1. The cold-blooded nature of the offense.

2. Abuse of the trust of a family relationship.

3. Presence of the victim's son in the house.

4. Defendant's sanity and absence of "abused spouse syndrome."

489 So.2d at 756. The district court stated that the fourth reason was not a valid reason for departure because the statements did not meet the "clear and convincing" standard required by Florida Rule of Criminal Procedure 3.701. The district court affirmed the sentence, however, finding that the remaining reasons for departure were valid and the State had met its burden under Albritton v. State, 476 So.2d 158 (Fla.1985), showing beyond a reasonable doubt that the absence of the invalid reason would not have affected the departure sentence. Davis, 489 So.2d at 756-57.

Petitioner argues that the district court erred in finding the first three reasons for departure to be valid. We agree. A departure from the guidelines may not be justified by reasons prohibited by the guidelines themselves, factors already taken into account in calculating the guidelines score, or an inherent component of the crime in question. State v. Mischler, 488 So.2d 523, 525 (Fla.1986). The function of an appellate court in reviewing a sentencing guideline case is to review the reasons given to support departure and determine whether the trial court abused its discretion in finding those reasons to be clear and convincing. Id. In order for a reason to be clear and convincing, there must be an appropriate reason for departure and the facts of the case must establish the reason in that particular case beyond a reasonable doubt. Id.

In finding reason one, the cold-blooded nature of the offense, to be a valid reason for departure, the district court determined that the trial judge was contemplating the cruelty with which the crime was committed, not premeditation. We disagree and conclude that, in the context in which it was made, the trial judge's conclusion that the murder was cold-blooded indicates the trial judge was contemplating premeditation. ² This reason therefore violates the proscription in Rule 3.701(d)(11) against considering factors relating to an offense for which convictions were not obtained. See Scurry v. State, 489 So.2d 25, 29 (Fla.1986). We concur with the analysis of Judge Nimmons in Bulger v. State, 509 So.2d 1269, 1270 (Fla. 1st DCA 1987), that a finding of premeditation is "impliedly negated by the absence of a first-degree murder conviction. This rationale is applicable even where the second-degree murder conviction is the result of a plea, as in the instant case." (Emphasis in original and citations omitted).

Furthermore, the factors considered by the district court as making the crime particularly cruel do not establish clear and convincing reasons for departure. The fact that Davis shot her husband while he was asleep is not alone an appropriate reason for departure. Williams v. State, 492 So.2d 1308 (Fla.1986). Although cruelty towards the victim may justify departure in some circumstances, the fact that Davis left the home rather than assisting her husband after shooting him is not a valid reason for departure. Such act occurred subsequent to the criminal act which caused her husband's death and does not make the criminal act itself more cruel. In addition, all killings, by any standard of decency, are cruel. There was nothing in the present case, however, to indicate this crime was committed in an excessively brutal manner. There was no evidence that the victim was aware of the impending attack. As in Scurry, consideration of the fact that the victim was able to stagger to the phone in another room to call for help before he died "would imply that a defendant should make sure he does a thorough job and effects death as soon as possible in order to be sentenced within the guidelines. We find no logic here." 489 So.2d at 29. The fact that the son was present, even if clearly established, is taken into account in the third reason and may not be considered twice.

The second reason for departure, abuse or breach of trust, has been found to constitute a clear and convincing reason to justify departure in some situations. See Hankey v. State, 485 So.2d 827 (Fla.1986) (burglary victim gave defendant job and entrusted him with key to fulfill duties and defendant abused position by using key to enter place of business after hours and steal money and items of value); Gardener v. State, 462 So.2d 874 (Fla. 2d DCA 1985) (teacher abused position of trust by selling cocaine on school property). See also Steiner v. State, 469 So.2d 179 (Fla. 3d DCA), review denied, 479 So.2d 118 (Fla.1985). In each of the these cases, the crime committed was directly related to the trust conferred on the defendant and the trust was the factor that made possible the commission of the crime. In the instant case, no particular trust bestowed on Davis by the victim formed the foundation of the crime; the crime was not directly related to a specific trust as in the above cases. In Williams v. State, 462 So.2d 36 (Fla. 1st DCA 1984), review denied, 471 So.2d 44 (Fla.1985), relied on by the district court below, an upward departure was upheld based on the fact that the stepfather used his "familial authority" to enable him to commit a lewd, lascivious or indecent assault on his ten-year-old stepdaughter. Davis, in contrast, did not take advantage of a position of authority over a victim who was a young child.

Further, were we to uphold a departure from the guidelines in this case based on abuse of the trust of a family relationship, it would serve as authority to do the same in most cases involving the killing of a spouse or other family member. If the sentencing commission had intended to impose a harsher sentence on those convicted of second degree murder when the victim was the defendant's spouse, it would have created a separate category for spousal homicide for purposes of establishing a score under the sentencing guidelines. Cf. Mischler, 488 So.2d at 526. Although abuse of the trust of a family relationship may justify departure in some instances, this is not a clear and convincing reason for departure under the facts at hand.

In holding the third reason, presence of the victim's son in the house and the possible long lasting traumatic effect on the child of the victim, to be a valid reason for departure, the district court relied on its prior decisions in Casteel v. State, 481 So.2d 72 (Fla. 1st DCA), quashed, 498 So.2d 1249 (Fla.1986) and Scurry v. State, 472 So.2d 779 (Fla. 1st DCA 1985), quashed, 489 So.2d 25 (Fla.1986). Although emotional trauma suffered by the son as a result of witnessing the shooting of his father may be an appropriate reason for departure, Casteel, 498 So.2d 1249, the facts demonstrating such must be proven beyond a reasonable doubt. Mischler, 488 So.2d at 525. See also Ortagus v. State, 500 So.2d 1367 (Fla. 1st DCA 1987). The trial judge's statements regarding this reason for departure reveal only speculation on the judge's part concerning the child's presence or future emotional impact:

The Court can't help but wonder about the young boy in the next bedroom, who must have heard this volley of shots sounding out in...