Hubert v. State, 85-1374

• Decision Date: 24 July 1986
• Docket Number: No. 85-1374,85-1374
• Citation: 11 Fla. L. Weekly 1627,491 So.2d 615
• Parties: 11 Fla. L. Weekly 1627 Alfred HUBERT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 615

491 So.2d 615

11 Fla. L. Weekly 1627

Alfred HUBERT, Appellant, v. STATE of Florida, Appellee.

No. 85-1374.

District Court of Appeal of Florida Fifth District.

July 24, 1986.

James B. Gibson, Public Defender, and Michael L. O'Neill, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a guideline departure sentence.

Appellant was charged with attempted first degree murder, armed robbery and use of a firearm in a felony. He pleaded nolo contendere to the armed robbery and pleaded nolo contendere to aggravated battery as a lesser included offense of the attempted murder. Parenthetically it is noted that the record before us does not disclose a factual basis which would support an aggravated battery conviction, but that is not a point on appeal; probably because appellant pleaded nolo contendere to it.

The point on appeal is the departure from the guidelines sentence. The recommended guideline sentence carried a maximum of five and one-half years but the judge departed upwards five cells to concurrent terms of fifteen and twenty years in prison with a suspension of execution of the last ten years, plus other penalties.

The reason given for the departure was that the appellant attempted to discharge his weapon five times, the last while trying to escape his victim, showing a complete disregard for human life. This reason for departure is invalid for two reasons. One, because the departure is based upon the nature of the offense for which he was convicted. Vandeneynden v. State, 478 So.2d 429 (Fla.5th DCA 1985); Wiggins v. State, 476 So.2d 257 (Fla. 4th DCA 1985). See also Hendrix v. State, 475 So.2d 1218 (Fla.1985). Two, because he was "acquitted" of the attempted murder by virtue of his plea and conviction and thus cannot be held accountable for that conduct. Santiago v. State, 478 So.2d 47 (Fla.1985); Brown v. State, 487 So.2d 1158 (Fla. 5th DCA 1986).

The court should not have assessed costs against this appellant. He had been determined previously to be indigent and there was no finding that he was no longer indigent. Jenkins v. State, 444 So.2d 947 (Fla.1984).

Sentence vacated, remanded.

ORFINGER, J., concurs.

SHARP, J., concurs specially with opinion.

SHARP, Judge, concurring specially.

I agree the sentence in this case should be quashed and the cause remanded for resentencing, and the imposition of costs stricken. The reasons given by the court for the departure sentence in this case might, in my view, be sufficient to sustain a sentence beyond the presumptive sentence range of the guidelines ¹ were they adequately supported by the record.

We have held that excessive use of force and victim injury and trauma may justify imposition of a departure sentence. Lerma v. State, 476 So.2d 275 (Fla. 5th DCA 1985). This is not simply a double counting of the necessary elements of crimes already scored in the guidelines matrix. In accomplishing an armed robbery, for example as in this case, it is not necessary to fire a gun five times at the robbery victim and so severely injure him that he nearly dies. Facts and circumstances relating to the manner in which a crime was committed may be a basis to "depart." See McGouirk v. State, 470 So.2d...