Gibson v. State, 85-2109
| Decision Date | 03 June 1986 |
| Docket Number | No. 85-2109,85-2109 |
| Citation | 489 So.2d 836,11 Fla. L. Weekly 1258 |
| Parties | 11 Fla. L. Weekly 1258 Alvin John GIBSON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Harold Mendelow, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Richard T. Kaplan, Asst. Atty. Gen., for appellee.
Before HENDRY, NESBITT and JORGENSON, JJ.
We affirm appellant's conviction for armed robbery, kidnapping and aggravated battery, finding his contentions relating to conviction to be without merit. Nonetheless, we agree that the sentence outside the guidelines should be reversed and remanded for resentencing.
As the basis for departure from the sentencing guidelines, the trial court stated eleven reasons. The first, lack of remorse, is an invalid ground for departure. State v. Mischler, 488 So.2d 523 (Fla.1986).
Though the court properly considered the circumstances of the crimes in a number of stated reasons, 1 Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984), the mere fact that the crimes were committed in a day care center cannot, by itself, be a valid reason for departure. Cf. Steiner v. State, 469 So.2d 179, 182 n. 10 (Fla. 3d DCA) (), review denied, 479 So.2d 118 (Fla.1985).
Additionally, lack of provocation is a "common ingredient" in both armed robbery and kidnapping. See Baker v. State, 466 So.2d 1144 (Fla. 3d DCA 1985). Since the record is not specific as to departure on this ground, we must assume that it was considered in departing on all counts and is therefore invalid.
It is unclear whether the trial court would have departed to such an extreme sentence of 283 years absent the invalid reasons. Albritton v. State, 476 So.2d 158 (Fla.1985). Accordingly, this case is
Reversed and remanded for resentencing.
1 It should be noted that all of the grounds which make up a single factor (i.e., the circumstances surrounding the crime) ought to be consolidated into a single reason for departure.
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...offense as one who possessed larger amount). The state next contends that neither Myers' expression of remorse, cf. Gibson v. State, 489 So.2d 836 (Fla. 3d DCA 1986) (lack of remorse an invalid ground for departure), nor Myers' non-violent personality, justifies departure. Cf. McNealy v. St......
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State v. Williams, 86-3056
...So.2d 173 (Fla. 5th DCA 1986) (impermissible to base departure on possibility that "gain time" would reduce sentence); Gibson v. State, 489 So.2d 836 (Fla. 3d DCA 1986) (lack of remorse an invalid ground for departure); State v. Taylor, 482 So.2d 578 (Fla. 5th DCA 1986) (cooperation is not ......
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Vidal v. State, 86-1337
...the departure. See State v. Mischler, 488 So.2d 523 (Fla.1986) (lack of remorse is an invalid reason for departure); Gibson v. State, 489 So.2d 836 (Fla. 3d DCA 1987) (same); Hankey v. State, 485 So.2d 827 (Fla.1986) (economic hardship is not a valid basis for departure); Williams v. State,......
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Simpson v. State, BJ-453
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