Felts v. State

• Decision Date: 14 January 1988
• Docket Number: No. BJ-413,BJ-413
• Citation: 13 Fla. L. Weekly 205,537 So.2d 995
• Parties: 13 Fla. L. Weekly 205, 14 Fla. L. Weekly 237 William FELTS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 995

537 So.2d 995

13 Fla. L. Weekly 205, 14 Fla. L. Weekly 237

William FELTS, Appellant, v. STATE of Florida, Appellee.

No. BJ-413.

District Court of Appeal of Florida First District.

Jan. 14, 1988.

On Rehearing En Banc Jan. 20, 1989.

Second Rehearing Denied March 1, 1989.

Michael E. Allen, Public Defender, and Ann Cocheu, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

William Felts appeals his ten year sentence for armed robbery, asserting that the trial court erred in imposing a sentence in excess of the recommended guidelines sentence of three years based upon reasons which were not clear and convincing. We affirm the sentence.

The trial judge gave four reasons for departure, which included the fact that appellant used excessive force in the robbery by pointing a firearm at the victim and threatening him with bodily harm, that the victim suffered "an extreme emotional impact" and "a severe financial impact" in the loss of a "practically brand new automobile," that appellant drove the victim's automobile at excessive speeds in an attempt to elude authorities which resulted in an accident in which one of his accomplices was killed, and that appellant engaged in a gun battle with the police during his flight which resulted in unnecessary danger to many persons. ¹ Appellant contends that the last two reasons were improper because an attempt to avoid arrest by fleeing is an insufficient reason for departure, citing Carter v. State, 485 So.2d 1292 (Fla. 4th DCA), rev. den., 494 So.2d 1149 (Fla.1986), and that these reasons constituted various crimes of which he was not convicted, citing Trainor v. State, 468 So.2d 484 (Fla. 2d DCA 1985), and Pursell v. State, 483 So.2d 94 (Fla. 2d DCA 1986). He asserts that, according to the scoresheet, there were neither additional offenses at conviction nor a prior record. Appellant admits that his counsel stated at the sentencing hearing that he had entered a plea and had been sentenced to a period of incarceration, but asserts that the record does not reflect the arrest or convictions. ²

Alternatively, he argues that "any inferences of arrests or convictions" were not credible and proven beyond a reasonable doubt, citing State v. Mischler, 488 So.2d 523 (Fla.1986). He asserts that threatening the victim with a gun is an inherent element of robbery, that use of a firearm had been factored into the scoresheet, and that use of the impact on the victim is prohibited by rule 3.701(b)(1). ³ Appellant seeks remand for resentencing under Albritton v. State, 476 So.2d 158 (Fla.1985), in the event the court finds some of the reasons for departure valid and some invalid.

The State asserts that appellant's high speed flight from the pursuing officers and the resulting death of his passenger constituted an extreme risk to the physical safety of both citizens and law enforcement officers, and that such conduct was not an inherent element of the offense of robbery, but was an aspect of the crime which would permit a sentencing departure, since it was not factored into the scoresheet. The State argues that the sentencing court may depart from the guidelines based upon circumstances surrounding the offense, citing Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984), and points out that in Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984), this court upheld the trial court's finding that a high speed automobile chase following a robbery and the firing of shots at the pursuing officer constituted clear and convincing reasons for a sentencing departure. ⁴ The State contends that the notation on the order (that any one of the reasons given would justify departure regardless of the presence of impermissible reasons) clearly indicates beyond a reasonable doubt that the trial court would have departed from the sentencing guidelines for any permissible reasons given, so that affirmance is authorized under Albritton.

We find that the first two reasons recited above do not justify departure, because pointing a firearm at the victim and threatening bodily harm are inherent components We find, however that the last reason justifies departure, because the "gun battle" constituted aggravated assaults on police officers, for which Georgia convictions (which could not be factored into appellant's scoresheet) ⁸ were obtained, and this incident posed an unnecessary risk of harm. ⁹ Convictions for crimes committed subsequent to the primary offense which cannot be scored may be used to justify departure. ¹⁰

of the crime of armed robbery, ⁵ the "extreme emotional impact" on the victim is not supported by the record, and "severe financial impact" on the victim is not a clear and convincing reason for departure. ⁶ The third reason is also invalid because it involves circumstances surrounding the offense for which convictions were not obtained (the high speed chase and the resulting fatal accident). ⁷

In Griffis v. State, 509 So.2d 1104 (Fla.1987), the Florida Supreme Court held that a statement by the trial court that it would depart for any of the reasons given, standing alone, is not enough to satisfy the State's burden of proving beyond a reasonable doubt that the sentence would not have been affected by the absence of the impermissible reasons, and that such a sentence may be affirmed only when the appellate court is satisfied by the entire record that the State has met its burden. We do not interpret Griffis to mean that the appellate court may not take into account such a statement by the trial court, but only that it may not rely on such a statement without considering the entire record.

In this case, we would be inclined to find that the record, including the trial court's statement, demonstrates that the same sentence would have been imposed in the absence of the impermissible reasons, and that the sentence may therefore be affirmed. However, recent legislative amendment of the sentencing guidelines statute raises a question whether this court should apply Albritton in this or subsequent appeals. ¹¹

The original versions of section 921.001, Florida Statutes, and Florida Rule of Criminal Procedure 3.701, establishing the sentencing guidelines mechanism, did not specify the method and scope of appellate review of departure sentences. In Albritton, the Florida Supreme Court attempted to divine the legislative intent in this regard, concluding that the Florida Legislature intended that a sentence based upon both valid and invalid reasons for departure should be remanded to the trial judge for reconsideration unless the State proved to the appellate court that the trial judge would have imposed the same sentence if the invalid reasons for departure were eliminated, and that the legislature also intended that even if a departure sentence were proper, the extent of the departure should be reviewed by the appellate court under an abuse of discretion standard.

Chapter 86-273, Laws of Florida, amended section 921.001(5), Florida Statutes, to provide that "[t]he extent of departure from a guidelines sentence shall not be subject to appellate review." Chapter 87- A departure sentence shall be based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence. The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a preponderance of the evidence. When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure.

110, Laws of Florida, effective July 1, 1987, included an amendment to section 921.001(5):

In Ochoa v. State, 509 So.2d 1115 (Fla.1987), the court noted the 1986 amendment, but stated that it did not reach the issue of whether the legislature can constitutionally "restrict appellate review of sentences" because it found no valid reason for departure in that case. In Griffis v. State, issued July 16, 1987, the court noted that it did not decide the effect of section 921.001(5) as amended in 1987, upon cases involving crimes committed subsequent to July 1, 1987. ¹² In subsequent decisions involving departure sentences, the supreme court has applied the Albritton standard. ¹³

These opinions seemed to suggest that the supreme court might view the 1987 amendment quoted above as an unconstitutional attempt to dictate appellate procedure, or as a substantive change in the law which may be applied only to cases in which the offense was committed after the effective date of the amendment so as to avoid violating the ex post facto provisions of the federal and Florida constitutions.

Then in Booker v. State, 514 So.2d 1079 (Fla.1987), the supreme court held that the 1986 amendment restricting review of the extent of departure sentences did not violate the constitutional separation of powers provision. The court observed that its holding in Albritton on this issue had been premised in part upon its view that appellate review of the extent of departure under an abuse of discretion standard would further the purpose of the guidelines (uniformity of sentencing), and that the legislature's elimination of such review may have undermined that purpose, but that this observation "goes to the wisdom of the amendment and not to its constitutionality." Id. at 1082. The court also held that application of chapter 86-273 to crimes committed before its effective date would violate the ex post facto provisions of the federal and Florida constitutions.

Appellant asserts that application of the quoted section of the 1987 amendment to this appeal would violate his rights under three constitutional provisions: due process, ex post facto, and separation of powers. ¹⁴ We disagree.

We observe...