Hamm v. State
| Decision Date | 09 March 1988 |
| Docket Number | No. 87-2082,87-2082 |
| Citation | 521 So.2d 354,13 Fla. L. Weekly 674 |
| Parties | 13 Fla. L. Weekly 674 Darrin Bartholemew HAMM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Joy L. Phillips, and A. Anne Owens, Asst. Public Defenders, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellee.
The appellant, Darrin Bartholemew Hamm, challenges his judgment and sentence. Although we affirm the appellant's conviction, we reverse the sentence and remand for resentencing.
The appellant was charged by information with robbery with a firearm in violation of section 812.13, Florida Statutes (1985). Although a jury found the appellant guilty of robbery without a weapon, the written judgment reflects that the appellant was convicted of armed robbery, a first degree felony. The guidelines scoresheet, which also reflects that the appellant was convicted of armed robbery, indicates that the primary offense was scored as a first degree felony along with points for four prior misdemeanor convictions and points for legal constraint at the time the subject offense was committed. Although the guidelines sentencing range based on this scoresheet was three and one-half years to four and one-half years imprisonment, the trial court sentenced the appellant to fifteen years in prison. The trial court gave the following reasons for imposing a departure sentence:
(1) The offense for which the defendant was sentenced was committed in a calculated manner without pretense of moral or legal justification.
(2) The offense for which the defendant was sentenced was committed in an unusually sophisticated manner.
(3) The defendant induced minors to participate in the offense for which he was sentenced.
This timely appeal followed.
The parties agree that the case must be remanded for the entry of a corrected judgment to reflect that the appellant was convicted of simple robbery rather than armed robbery. See Ghianuly v. State, 516 So.2d 277 (Fla. 2d DCA 1987).
Since the type and degree of crime is reflected and scored improperly on the scoresheet, we also remand this case for the preparation of an accurate scoresheet because without knowing the correct presumptive sentence, the trial court was without sufficient information to decide whether to depart from the guidelines. See Bass v. State, 496 So.2d 880 (Fla. 2d DCA 1986). While correcting the scoresheet, the trial should examine the propriety of scoring seventeen points for legal constraint. Those points were scored because the appellant was serving a period of probation for an expired tag violation. As to that offense, the appellant affirmatively alleged that he did not have an attorney and did not know that he had the right to an attorney for this minor traffic violation when he appeared accompanied only by his mother, pled guilty, and was placed on six months probation. If, in addition to the above allegations, the appellant can establish that he had a right to counsel when he was placed on probation, see Leffew v. State, 518 So.2d 1376 (Fla. 2d DCA 1988), the state then must present evidence to overcome this prima facie showing that the conviction may have been obtained in violation of the appellant's constitutional right to counsel. See Croft v. State, 513 So.2d 759 (Fla. 2d DCA 1987).
The appellant further contends that the reasons the trial court gave for imposing the departure sentence were either invalid or not supported by the record. We agree. The lack of "moral or legal...
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Hlad v. State
...sentence on a subsequent conviction if the defendant did not have a right to counsel in the prior proceedings. See also Hamm v. State, 521 So.2d 354 (Fla. 2d DCA 1988). Of the other appellate courts in Florida, only the Third District has not addressed the issue now before The problem with ......
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Williams v. State, 87-1792
...elements of armed robbery they, too, are invalid reasons for departure. Hansbrough v. State, 509 So.2d 1081 (Fla.1987); Hamm v. State, 521 So.2d 354 (Fla. 2d DCA 1988); Lumpkin v. State, 510 So.2d 1164 (Fla. 3d DCA The fourth reason given for departure, the victim's known vulnerability due ......
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Koleta v. State, 90-00122
...The lack of "moral or legal" justification is inherent in most crimes and therefore is an invalid reason for departure. Hamm v. State, 521 So.2d 354 (Fla. 2d DCA 1988); see Scurry. In this case as in most homicide cases, the existence of such evidence would likely have supported a finding o......
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Falzone v. State, 87-696
...amount of $224.50 were improperly imposed without notice and without showing any statutory basis therefor. We agree. See Hamm v. State, 521 So.2d 354 (Fla. 2d DCA 1988). On remand cognizance should be taken of State v. Yost, 507 So.2d 1099 Reversed and remanded for resentencing consistent w......