Knox v. State

• Decision Date: 26 September 1989
• Docket Number: No. 88-2975,88-2975
• Citation: 14 Fla. L. Weekly 2263,549 So.2d 231
• Court: Florida District Court of Appeals
• Parties: 14 Fla. L. Weekly 2263 Wilfred KNOX, Appellant, v. The STATE of Florida, Appellee.

Page 231

549 So.2d 231

14 Fla. L. Weekly 2263

Wilfred KNOX, Appellant, v. The STATE of Florida, Appellee.

No. 88-2975.

District Court of Appeal of Florida Third District.

Sept. 26, 1989.

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

Robert A. Butterworth, Atty. Gen., and Jorge Espinosa, Asst. Atty. Gen., for appellee.

Before BASKIN, FERGUSON and GERSTEN, JJ.

PER CURIAM.

Wilfred Knox was convicted of strong-arm robbery, a second-degree felony under section 812.13(2)(c), Florida Statutes (1985), punishable by a term of imprisonment not exceeding fifteen years pursuant to section 775.082(3)(c), Florida Statutes (1985). The sentencing guidelines range was nine to twelve years. The trial judge departed from the recommended guidelines and sentenced Knox to fifteen years incarceration. Subsequently, the state sought to enhance Knox's sentence under the habitual offender section 775.084, Florida Statutes (1985). The trial court granted the state's motion and enhanced Knox's sentence to thirty years incarceration. The trial court provided seven written reasons for departure. When Knox appealed, the state conceded that four of the seven reasons for departure were invalid. Accordingly, we reversed and remanded to the trial court "to consider the three remaining reasons for departure and resentence Knox accordingly." Knox v. State, 528 So.2d 1369 (Fla. 3d DCA 1988). On remand, the trial court departed from the presumptive guidelines based on the three remaining reasons and sentenced Knox to thirty years imprisonment. Knox appeals. We affirm.

The reasons set forth by the trial court in support of its departure sentence are valid and supported by the record. The use of excessive force, Bannerman v. State, 544 So.2d 1132 (Fla. 4th DCA 1989); Wright v. State, 538 So.2d 497 (Fla. 3d DCA 1989); Harris v. State, 482 So.2d 548 (Fla. 4th DCA 1986); Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); victim injury not scored as part of the charged offense Wright; Bell v. State, 522 So.2d 989 (Fla. 1st DCA 1988); Smith v. State, 507 So.2d 788 (Fla. 1st DCA 1987); Grandison v. State, 506 So.2d 74 (Fla. 5th DCA 1987); and a pattern of criminal conduct escalating from nonviolent crimes against property to violent crimes against the person, Keys v. State, 500 So.2d 134 (Fla.1986); McGriff v. State, 528 So.2d 396 (Fla. 3d DCA 1988); Brier v. State, 504 So.2d 809 (Fla. 2d DCA 1987), are all valid reasons for departure from the presumptive guidelines. However, because the use of excessive force will almost always result in victim injury, its employment as a reason to depart is duplicative when victim injury is also stated as a reason to depart. Hansbrough v. State, 509 So.2d 1081 (Fla.1987); Wright. We therefore reject it as a reason for departure here. Notwithstanding that reason's invalidity, after reviewing the record, this court "is satisfied that the state has met its burden of proving beyond a reasonable doubt that the sentence would have been the same without the impermissible reasons," Griffis v. State, 509 So.2d 1104, 1105 (Fla.1987); see also Albritton v. State, 476 So.2d 158 (Fla.1985).

This case is distinguishable from Spivey v. State, 512 So.2d 322, 323 (Fla. 3d DCA 1987). In Spivey, we viewed the trial court's candid record statements as "prejudicial factors extraneous to the case." Here, however, we find that the trial court expressed views in accord with the reasons we ruled valid. Noting that it accepted the opinion of this court, the trial court reiterated its disapproval of the excessive amount of force used in the commission of the robbery. Because we deemed that ground a valid reason for departure, we are unable to say that the trial court failed to follow our mandate. ¹

Affirmed.

BASKIN and GERSTEN, JJ., concur.

FERGUSON, Judge (dissenting).

The panel opinion, in my view, misses the issue. This case is indistinguishable from Spivey v. State, 512 So.2d 322 (Fla. 3d DCA 1987), where we reversed a sentence a second time and remanded with instructions that the case be reassigned to a different judge for sentencing where the trial judge ¹ had shown substantial difficulty in putting out of his mind reasons which should not have been a factor in a decision to exceed the sentencing guidelines.

We reversed this same thirty-year sentence in Knox v. State, 528 So.2d 1369 (Fla. 3d DCA 1988), on grounds that four of seven reasons given for the departure were invalid. Two of the four invalid reasons were (1) the defendant committed the crime against a victim who was particularly vulnerable, and (2) the victim was over sixty-five years of age.

On remand for resentencing the trial court again, in pronouncing the sentence, relied on two of the disallowed reasons:

[T]he court is satisfied that the defendant committed the crime against the victim, who was particularly vulnerable in that she was a frail, thin, elderly woman. And of course the victim of the crime was over 65 years of age and now is deceased. How old was she at the time of her death?

THE PROSECUTOR: She would have been 79.

THE COURT: She would have been 79. She was 76 at the time of the offense.

The court would also--

THE PROSECUTOR: Judge, if I may, with regard to the appellate court's mandate, the only valid reasons the court could give--

THE COURT: Are one, four and five.

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Now, the Third District Court of Appeal said, well, we don't feel that reason number 2 and...