Gilmore v. State

• Decision Date: 08 July 2011
• Docket Number: No. 2D10–713.,2D10–713.
• Citation: 64 So.3d 200
• Parties: Terry GILMORE, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

64 So.3d 200

Terry GILMORE, Appellant,
v.
STATE of Florida, Appellee.

No. 2D10–713.

District Court of Appeal of Florida, Second District.

July 8, 2011.

[64 So.3d 200]

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

[64 So.3d 201]

KHOUZAM, Judge.

Terry Gilmore appeals after being resentenced to the same upward departure sentence he originally received in 1984—life in prison for five armed robbery convictions. We reverse and remand for the trial court to resentence Gilmore within the 1983 sentencing guidelines using a corrected scoresheet.

On December 11, 1984, a jury found Gilmore and his codefendant, Lawrence Logan, guilty on five counts of armed robbery. The offenses occurred on March 17, 1984. Gilmore and Logan were both given upward departure sentences of life in prison on December 11, 1984. This court affirmed Gilmore's sentences on direct appeal. Gilmore v. State, 482 So.2d 353 (Fla. 2d DCA 1986) (table decision). On November 26, 2008, Gilmore filed a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The trial court granted the motion on April 7, 2009, and ordered a resentencing pursuant to the 1983 guidelines. On January 14, 2010, the trial court again sentenced Gilmore to the upward departure sentences of life in prison, adopting the findings of the original sentencing judge. Gilmore's scoresheet also included 21 victim injury points.

Gilmore argues that the trial court abused its discretion in imposing the upward departure sentence based on the exact same reasons cited by the trial judge in 1984. He claims that the departure reasons given by the judge at resentencing were based on facts neither admitted by Gilmore nor found by a jury and are therefore improper under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He also contends that all of the reasons for departure have been declared invalid since his original sentencing. Finally, he points out that the guidelines in effect at the time of his offense only allow for victim injury points if victim injury was an element of the crime. He concludes that upon remand he should be resentenced within the guidelines with a corrected scoresheet.

The State concedes that...