Garcia v. State, s. AW-135

Citation454 So.2d 714
Decision Date14 August 1984
Docket NumberAW-313,Nos. AW-135,s. AW-135
PartiesOnelia GARCIA and Matthew Lee Wilson, Appellants, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

P. Douglas Brinkmeyer, Asst. Public Defender and Carol Bickerstaff, Legal Intern, Tallahassee, for appellants.

Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellants appeal from their sentences imposed by the trial court below. Both were convicted upon tendered pleas of guilty to two separate charges: burglary of an occupied dwelling while armed with a firearm, with the making of an assault; and robbery without the use of a firearm or other deadly weapon. Appellants contend here that the trial court erred in departing from the recommended sentencing guidelines, Florida Rule of Criminal Procedure 3.701, In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983), in sentencing the appellants to concurrent ten year prison terms, as well as in failing to justify the reasons for its departure from the sentencing guidelines with specificity sufficient to inform all parties of the factual basis for its departure. Finding both points to be without merit, we affirm.

Appellants were charged by a four-count information filed June 10, 1983, with burglary of a dwelling with a firearm, robbery with a firearm, and separate counts of attempted first degree murder. Appellants, along with a codefendant not involved in the instant appeal, robbed the victim at gunpoint in the victim's residence around 2:00 A.M. on May 24, 1983. All three made their escape in the victim's automobile. Subsequently, at approximately 3:20 A.M. on the same evening, appellants were sighted driving the victim's automobile by an observant Gainesville police officer responding to a BOLO. As a result, a chase ensued during which both appellants fired shots at the pursuing officer. One of these shots entered the open driver's door window of the officer's police car and blew out the window on the other side of the car. 1 Later, the pursuing officer ran into a tree during the course of the pursuit. Appellants made their escape in a wooded area near the location of the officer's accident, but were captured a few hours later in the apartment of a friend.

Appellants entered a negotiated plea in which appellants plead guilty to burglary of an occupied dwelling with a firearm and robbery without the use of a firearm or other deadly weapon. In exchange, the State agreed to nolle pros the pending attempted murder charges. Score sheets prepared for the purposes of determining a proper recommended sentence pursuant to the sentencing guidelines indicated a recommended sentence range for Garcia of between three and one-half to four and one-half years; for appellant Wilson, the recommended sentence range was three years.

At sentencing, the court chose to deviate from the sentencing guidelines, and sentenced each appellant to concurrent prison terms of ten years, with credit for time served. The trial judge indicated that the guidelines' recommended sentence was inappropriate in each of appellants' cases because of the threat to the personal safety of both citizens and law enforcement officers created by appellants' unjustifiable conduct. The trial judge further stated his reasons for departing the sentencing guidelines in the written order of sentence: "Extreme risk to the physical safety of both citizens and law enforcement officers caused by the [appellants] during the perpetration and apprehension for this offense." This appeal followed.

Appellants contend the trial court erred in considering the facts surrounding their apprehension as the basis for departure from the guidelines. They note that although they were originally charged with two counts of attempted first degree murder based on the fact that shots were fired at the pursuing police officer, the charges were later dropped as a result of plea negotiations. Therefore, they assert, no convictions were obtained for this offense, and Florida Rule of Criminal Procedure 3.701(d)(11) prohibits the use of the underlying facts relating to the attempted murder charges which were dismissed. Rule 3.701(d)(11) provided, in part, at the time of appellants' sentencing (November 1983): 2

Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.

Appellants contend that the "extreme risk" factor relied upon by the trial court was a factor relating either to the instant offenses for which appellants plead guilty below, or to their conduct culminating in the attempted murder charges which were nolle prossed. Appellants assert that since their conduct in firing shots at the pursuing police officer did not subsequently result in convictions, the trial court was prohibited by the rule from considering such behavior as a reason for departing from the guidelines. Appellants further argue that the "extreme risk" factor relating to the offenses for which they were convicted is equally inapplicable as a reason for departure. They urge that that risk factor noted by the trial court has already been taken into account by the sentencing commission in the formulation of the sentencing guidelines. Thus, since the offenses below were committed in a manner that the appellants characterize as "very ordinary," the trial court's allusion to the extreme risk of harm to the victim of the burglary and robbery cannot constitute "clear and convincing reasons" for departing from the guidelines' recommended sentence.

Finally, appellants suggest that the trial court below violated the spirit if not the letter of Rule 3.701(d)(11), which requires "any sentence outside of the guidelines [to be] accompanied by a written statement delineating the reasons for the departure." Appellants maintain that the trial court below failed to adequately delineate its reasons for departing the sentencing guidelines. Rather, appellants assert that the trial court's "terse [and] conclusory assertion" fails to "with sufficient specificity [inform] all parties, as well as the public, of the reasons for departure." Florida Rule of Criminal Procedure 3.701(d)(11), committee note. Appellants suggest that their right to appellate review has been curtailed by the trial court's alleged lack of written specificity as to the reasons for its departure from the guidelines. We find these points raised by appellants to be without merit.

This case presents the issue specifically reserved by this court in its recent decision in Darryl Manning and James W. Phillips v. State of Florida, 452 So.2d 136 (Fla. 1st DCA 1984), that is, whether Rule 3.701(d)(11) precludes the trial court's consideration of charges which have been dismissed pursuant to a plea bargaining agreement as a factor justifying departure from the sentencing guidelines. As previously noted, Rule 3.701(d)(11) contains a two-pronged prohibition: Factors relating to either the "instant offense," or "prior arrests" for which convictions have not been obtained. Under appellants' literal interpretation of this rule, the trial court's departure from the guidelines was improper under either prong of the prohibition just noted. One of the factors relating to appellants' apprehension and arrest undoubtedly was their firing of shots at the pursuing officer; but no convictions for the resulting attempted murder charges were secured. Although the appellants' actions in firing shots at the pursuing officer cannot literally be considered an element of the offenses appellants pled to, Section 810.02(3) and Section 812.13(c), nevertheless these actions taken shortly after the burglary and robbery, presumably while making their escape from the scene, may arguably be viewed as "relating to" these offenses. Under the broad view of the term "factors relating to the instant offenses" urged by appellants, nothing that occurred during the entire criminal episode, including events immediately following the actual commission of the offense, could be considered by the trial judge as justifying a departure from the guidelines unless conviction for a specific offense resulted. Further, as previously noted, appellants view the "extreme risk" factor relating to the offenses at the victim's dwelling as already taken into account by the guidelines' presumptive sentence range.

We reject the interpretation urged by appellants. In our view, the traditional discretion of a sentencing court to consider all facts and circumstances surrounding the criminal conduct of the accused has not been abrogated by adoption of the sentencing guidelines. Our interpretation is supported by language found within the guidelines themselves, as well as their underlying rationale. For example, the guidelines' statement of purpose found at Rule 3.701(b)(6) provides: "The sentencing guidelines are designed to aid the [sentencing] judge in the sentencing decision and are not intended to usurp judicial discretion...." The function and purpose of the guidelines is further illuminated in the authoritative contemporary analysis by Sundburg, Plante, and Braziel, Florida's Initial Experience with Sentencing Guidelines, 11 Fla.St.U.L.Rev. 125, 150 (1983). The authors of this work report that during the multi-jurisdictional sentencing guidelines project instituted in 1981 and ending April 14, 1982:

... The trial judges were cautioned that at no time should sentencing guidelines be viewed as the final word in the sentencing process ... because a factor was not expressly delineated on the score sheet did not mean that it could not be used in the sentence decision making process. The specific circumstances of the offense could be used to either aggravate or mitigate the sentence within the guideline range or, if the offense or offender characteristics were sufficiently compelling, used...

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43 cases
  • Mischler v. State, 84-151
    • United States
    • Court of Appeal of Florida (US)
    • 17 Octubre 1984
    ...DCA 1984); Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984); Williams v. State, 454 So.2d 751 (Fla. 1st DCA 1984).12 Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984).13 The lone exception appears in the case of Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984), where "extreme risk" to th......
  • Felts v. State, BJ-413
    • United States
    • Court of Appeal of Florida (US)
    • 14 Enero 1988
    ...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 p......
  • Hall v. State
    • United States
    • Court of Appeal of Florida (US)
    • 18 Marzo 1987
    ...the victim, were placed in extreme danger. Johnson at 50. See also Campbell v. State, 486 So.2d 61 (Fla. 4th DCA 1986); Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984). In Hannah v. State, 480 So.2d 718 (Fla. 4th DCA 1986), where the defendant was convicted of manslaughter with a firearm......
  • Ortagus v. State, BL-204
    • United States
    • Court of Appeal of Florida (US)
    • 6 Enero 1987
    ...of others. A flagrant disregard for the safety of others does constitute a clear and convincing reason for departure. Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984). However, the fact that Ortagus endangered the lives of others was not proven beyond a reasonable doubt. State v. Mischler......
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1 books & journal articles
  • Unhandcuffing justice: proposals to return rationality to criminal sentencing.
    • United States
    • Florida Bar Journal Vol. 83 No. 2, February 2009
    • 1 Febrero 2009
    ...Court of Appeal considered and then upheld an upward departure in violation of the legislature's guideline rules. In Garcia v. State, 454 So. 2d 714, 416-17 (Fla. 1st DCA 1984), the court explained that "[i]n our view, the traditional discretion of a sentencing court to consider all facts a......

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