Jones v. State, No. 95-389

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before SCHWARTZ; SCHWARTZ
• Citation: 669 So.2d 1094
• Docket Number: No. 95-389
• Decision Date: 13 March 1996
• Parties: 21 Fla. L. Weekly D618 Patsy JONES, Appellant, v. The STATE of Florida, Appellee.

Page 1094

669 So.2d 1094 21 Fla. L. Weekly D618 Patsy JONES, Appellant,
v.
The STATE of Florida, Appellee. No. 95-389. District Court of Appeal of Florida,
Third District. March 13, 1996.

Page 1095

An Appeal from the Circuit Court for Dade County; Richard V. Margolius, Judge. No. 93-30742.

Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Consuelo Maingot, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and JORGENSON and GREEN, JJ.

SCHWARTZ, Chief Judge.

The appellant Jones and two co-perpetrators followed an Illinois businessman named Thomas Walsh, who had just arrived at Miami International Airport for a meeting in Broward County the next day, from a rental car agency at the airport onto an expressway where they stopped his car at gunpoint, shot at him and robbed him of money and jewelry. She was convicted of attempted third degree felony murder, as a lesser offense of attempted first degree murder, and of armed burglary, armed robbery, carjacking with a firearm, and dealing in stolen property. On this appeal, she challenges only the first conviction and an upward departure sentence which was based on the victim's heightened vulnerability. ¹ We find merit in both positions.

I.

The attempted third degree felony murder conviction must be reversed under State v. Gray, 654 So.2d 552 (Fla.1995). Moreover, as in Wilson v. State, 660 So.2d 1067 (Fla. 3d DCA 1995), review granted, 668 So.2d 604 (Fla.1996), and several similar cases, ² we reject the state's claim that this conviction may properly be reduced to a lesser included offense. We again certify to the Supreme Court the question of great public importance stated in Wilson, 660 So.2d at 1069.

II.

The trial court departed upward from the sentencing guidelines on the following basis:

2. The Court's sentence departs from the guidelines because the evidence clearly establishes that the defendants chose the victim in this case because they correctly surmised that he was a tourist. The defendant's confession establishes that when she and the codefendants decided to commit a robbery they drove a considerable distance to the area of Miami International Airport. Specifically, they drove to the expressway on the south side of the airport, which was closest to the rental companies where an out-of-town tourist would most likely go to rent an automobile. They forcibly stopped the victim's rental car on the expressway and committed the crimes for which the defendant was convicted.

Page 1096

3. The victim's status as a tourist made him particularly vulnerable to defendant's crimes since his lack of familiarity with the area made his escape highly unlikely. Moreover, because he was a tourist it was a great hardship for him to return to Miami to appear for deposition and trial. The defendant and her codefendant specifically selected the victim in this case because they hoped that his vulnerability as a tourist would make the crime easier to commit and less likely to be successfully prosecuted.

4. The particular vulnerability of a victim can be a valid reason for departing from the sentencing guidelines. Carter v. State, 550 So.2d 1130 (Fla. 3d DCA 1989); Orange v. State, 535 So.2d 691 (Fla. 3d DCA 1988); Berry v. State, 511 So.2d 1075 (Fla. 1st DCA 1987). Particularly, when as in this case, the victim's vulnerability is the actual reason why he was selected as a victim, a departure from the guidelines is warranted.

Whatever our own view may be, the guidelines departure imposed because of Walsh's "particular vulnerability" in these circumstances does not pass muster under controlling decisions of the supreme court. E.g., Wemett v. State, 567 So.2d 882 (Fla.1990); Mathis v. State, 515 So.2d 214 (Fla.1987); Lerma v. State, 497 So.2d 736 (Fla.1986). This is essentially because Walsh's situation as an out-of-towner driving a rental car at night on a Miami expressway was simply not significantly more (indeed, was probably less) dangerous than that of any other victim of an armed robbery, or, even more obviously, any other victim of a carjacking. As the Supreme Court said in Wemett:

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