Olive v. State, 85-2192
| Decision Date | 17 June 1986 |
| Docket Number | No. 85-2192,85-2192 |
| Citation | 11 Fla. L. Weekly 1359,489 So.2d 893 |
| Parties | 11 Fla. L. Weekly 1359 Giraldo OLIVE, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard Sohn, for appellant.
Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
Before NESBITT, PEARSON, DANIEL S. and FERGUSON, JJ.
Olive raises three points on appeal of his conviction and sentence for armed robbery. Finding the first two points to be without merit, we affirm the conviction. However, we agree with the final point and reverse and remand for resentencing.
After being convicted by a jury for armed robbery, Olive was sentenced to seventeen years. In departing from the recommended guidelines sentence of seven to nine years, the trial court articulated the following six reasons:
1) The perpetration of the armed robbery created an extreme risk to the victims and witnesses in the case.
2) The commission of the offense created psychological trauma to the witness.
3) The defendant and his companion each carried a firearm indicating that they had the ability to carry out the threats made to the victim.
4) The defendant exhibited disregard for the property rights of the victim by taking approximately $500.00 and a gold chain from him during the course of the armed robbery.
5) The defendant is a nonrehabilitative career criminal.
6) The defendant's prior criminal record necessitated an enhancement of the presumptive sentence pursuant to the sentencing guidelines. (citations omitted)
Extreme risk to the victim inheres in the nature of an armed robbery and therefore reason one is an invalid basis for departure. Baker v. State, 466 So.2d 1144 (Fla. 3d DCA 1985). Likewise, that the "defendant exhibited disregard for the property rights of the victim by taking approximately $500.00 and a gold chain" is an inherent component of robbery, as is the victim suffering an economic loss. See Hankey v. State, 485 So.2d 827 (Fla.1986). Additionally, the use of a firearm, as indicated in reason three, is an essential element of the crime of armed robbery and is therefore an improper consideration. Campos v. State, 11 F.L.W. 1080 (Fla. 4th DCA May 7, 1986).
Though psychological trauma inflicted upon a victim may be a valid reason to depart, Hankey, 485 So.2d at 138, and the trauma experienced by a witness of a crime upon a family member has been recognized as a valid consideration in sentencing, see Casteel v. State, 481...
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Lumpkin v. State, 86-3058
...victims of an armed robbery is inherent in the nature of the crime. Thorne v. State, 496 So.2d 891 (Fla. 2d DCA 1986); Olive v. State, 489 So.2d 893 (Fla. 3d DCA 1986). It is therefore already factored into the guidelines and is an invalid reason for departure. Thorne, Olive, see State v. M......
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Moreira v. State, 84-2160
...the victim was abducted from within his own home in the presence of his loved ones. Davis v. State, (Fla. 1st DCA 1986); Olive v. State, 489 So.2d 893 (Fla. 3d DCA 1986); Scurry v. State, We conclude that both grounds are supported by the reasons and the authorities cited. Affirmed. ...