Johnson v. State, 86-914
| Decision Date | 12 January 1988 |
| Docket Number | No. 86-914,86-914 |
| Citation | 13 Fla. L. Weekly 182,517 So.2d 792 |
| Parties | 13 Fla. L. Weekly 182 Christopher A. JOHNSON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Roberta Simon, Sp. Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Ivy R. Ginsberg, Asst. Atty. Gen., for appellee.
Before HENDRY, NESBITT and JORGENSON, JJ.
The appellant was tried by a jury and found guilty of third degree murder, 1 as a lesser-included offense of first degree murder, and grand theft-second degree. He was found not guilty of an additional charge of burglary. The trial court entered its adjudication of guilt in accordance with the jury verdict and imposed a sentence of 15 years for the third degree murder offense. 2 As to the grand theft offense, the court withheld adjudication and placed appellant on a 2 year period of probation following the expiration of his murder sentence, also directing that appellant pay partial supervision costs.
Reversal is urged on two grounds. First, it is contended that the trial court erred in permitting the prosecution to comment on appellant's failure to call a certain witness. We find that with respect to this contention, the appellant has failed to demonstrate harmful error which injuriously affected any of his substantial rights. We, accordingly, affirm the convictions.
The second point brought on for our consideration is whether the trial court erred in departing from the presumptive sentence of 7-12 years under the guidelines and imposing an enhanced sentence of 15 years for the murder conviction based on the following written reasons provided by the trial court for departure.
1. The defendant committed the crime against Robert Funk, a victim who was particularly vulnerable to the defendant, in that Robert Funk was a man of advanced age, under the influence of alcohol at the time of his death, and a man who had befriended the defendant shortly before he was killed by the defendant.
2. The defendant committed an outrageous act involving excessive use of force against a defenseless victim.
3. The murder of Robert Funk was committed in a particularly outrageous or brutal manner, in that Robert Funk was strangled to death by the defendant with such force that it broke his larynx.
4. The murder of Robert Funk was grotesque and senseless, showing an utter disregard for human life.
The reasons given by the trial court are improper, first, because they are factors regarding the offense for which convictions were not obtained, Scurry v. State, 489 So.2d 25, 29 (Fla.1986); Fla.R.Crim.P. 3.701(d)(11), i.e., aspects of a higher degree of homicide, with a premeditated design to effect death, or with a depraved mind regardless of human life, § 782.04(1)(a)1., (2), Fla.Stat. (1983). Reason number 1, the vulnerability of the victim based on his advanced age [55 to 60 years], his being under the [self-induced] influence of alcohol and his befriending the defendant shortly before his death is an improper reason for departure. See Harmon v. State, 506 So.2d 500 (Fla. 1st DCA 1987) (); Williams v. State, 492 So.2d 1308, 1309 (Fla.1986) (...
To continue reading
Request your trial
-
Johnson v. State
...of the trial court's reasons for its upward departure from the sentencing guidelines--that is, the age of victim, see Johnson v. State, 517 So.2d 792 (Fla. 3d DCA 1988); crimes for which the defendant was not convicted, see Tuthill v. State, 518 So.2d 1300 (Fla. 3d DCA 1987); and the defend......
-
Jones v. State, 95-389
...than the sleeping victim in Williams v. State, 492 So.2d 1308 (Fla.1986), the elderly, alcohol-impaired victim in Johnson v. State, 517 So.2d 792 (Fla. 3d DCA 1988), the elderly, disabled lady in Grant v. State, 586 So.2d 438 (Fla. 1st DCA 1991), who was at home late at night in bed when th......
-
Aleman v. State, 87-2515
...was acquitted by the jury," reasons cannot be used as basis for departing from the guidelines on convicted offense); Johnson v. State, 517 So.2d 792 (Fla. 3d DCA 1988) (factor relating to offense for which convictions not obtained improper basis for departure); Vega v. State, 498 So.2d 1294......
-
Grant v. State, 87-2732
...State, 492 So.2d 1308 (Fla.1986) (fact that victim was stabbed while sleeping held insufficient reason for departure); Johnson v. State, 517 So.2d 792 (Fla. 3d DCA 1988) (fact that murder victim was 57 years old and drunk at time of murder held invalid reason for departure); Harmon v. State......