Guzie v. State, BO-112
Decision Date | 09 September 1987 |
Docket Number | No. BO-112,BO-112 |
Citation | 512 So.2d 289,12 Fla. L. Weekly 2220 |
Parties | 12 Fla. L. Weekly 2220 James Lamar GUZIE, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Duval County; John D. Southwood, Judge.
Michael E. Allen, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Norma J. Mungenast, Asst. Atty. Gen., Tallahassee, for appellee.
This cause is before us on appeal from a judgment and sentence wherein appellant was adjudicated guilty of burglary and sentenced, outside the guidelines, to ten years of prison. The recommended guideline sentence was four and a half to five and a half years of prison.
The issue presented is whether the trial court's reasons for departing are clear and convincing. Although we are inclined to agree with the trial court, we are compelled by case law to reverse and remand for resentencing within the guidelines.
The trial court gave four reasons for departure. Reasons one and two are invalid because they are based upon appellant's prior record. See Hendrix v. State, 475 So.2d 1218 (Fla.1985). Reason three, the age and vulnerability of the victim, is an inappropriate reason under the circumstances present in this case because there was no showing that the victim here was any more vulnerable than a person who may be younger and/or stronger. Compare Von Carter v. State, 468 So.2d 276 (Fla. 1st DCA 1985), after remand, 482 So.2d 533 (Fla. 1st DCA 1986) ( ), and Hadley v. State, 488 So.2d 162 (Fla. 1st DCA 1986) ( ). Finally, reason four, presence of the victim in the dwelling at the time of the burglary, is invalid because the victim entered her home after she saw the appellant enter. Compare Brooks v. State, 487 So.2d 68 (Fla. 1st DCA 1986) ( ).
Based on the foregoing, we are compelled to reverse and remand for resentencing within the recommended guidelines.
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Wemett v. State
...activity are sufficient as clear and convincing reasons for upward departure from the sentencing guidelines."); Guzie v. State, 512 So.2d 289, 290 (Fla. 1st DCA 1987) ("no showing that the victim here was any more vulnerable than a person who may be younger and/or stronger"); Grant v. State......
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Wemett v. State, 88-2889
...particularly vulnerable will support a departure sentence. Bell v. State, 522 So.2d 989, 990 (Fla. 1st DCA 1988); Guzie v. State, 512 So.2d 289, 290 (Fla. 1st DCA 1987); Hadley v. State, 488 So.2d 162 (Fla. 1st DCA 1986); Von Carter v. State, 468 So.2d 276, 279 (Fla. 1st DCA 1985). Moreover......
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Duncan v. State, BP-193
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