Previlon v. State, 85-1849
| Decision Date | 07 January 1987 |
| Docket Number | No. 85-1849,85-1849 |
| Citation | 500 So.2d 716,12 Fla. L. Weekly 237 |
| Parties | 12 Fla. L. Weekly 237 Roges PREVILON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Eddie J. Bell, Asst. Atty. Gen., West Palm Beach, for appellee.
Roges Previlon was convicted of aggravated battery and possession of a firearm in the commission of a felony. He was sentenced to fifteen years' imprisonment with a three-year mandatory minimum as to each count, to run concurrently. The sentence constitutes a six-cell upward departure from the presumptive guidelines sentence.
Appellant pulled a gun and shot his victim in the leg, causing scarring and a permanent disability. The shooting took place in a crowded theater.
We find appellant's objection to evidentiary rulings to be without merit. See Wrobel v. State, 410 So.2d 950 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla.1982). See also Sanchez v. State, 445 So.2d 1 (Fla. 3d DCA 1984).
Appellant contends that conviction of these two offenses based upon the same criminal act violates the constitutional prohibition against double jeopardy, relying upon Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980). The Jenrette court relied for its thesis upon State v. Pinder, 375 So.2d 836 (Fla.1979).
The modern and better-reasoned rule is that conviction under two statutory provisions for a single criminal act does not constitute double jeopardy, provided each statutory provision requires proof of an additional fact which the other does not. For this analysis it is necessary to fit the facts of a particular case into the statutory language of the two provisions involved. A rule of thumb is that if an offense under one of the statutory offenses is a necessarily lesser-included offense under the other statutory offense, then the double jeopardy prohibition is offended by separate convictions and sentences.
The underpinnings for such an analysis were promulgated by the supreme court in State v. Gibson, 452 So.2d 553 (Fla.1984), where the court pointed out that the "single transaction rule" had been legislatively eliminated from Florida law by section 775.021(4), Florida Statutes (1977). In Gibson the court noted that:
In Borges v. State, 415 So.2d 1265 (Fla.1982), we held that the determination of whether two statutory offenses, charged on the basis of a single act or group of acts of the accused, are the same offense by reason of one being a lesser included offense of the other, is to be made by examining the statutory elements of the offenses rather than the allegations in the charging instrument or the factual elements of evidentiary proof presented at trial.
The Gibson court further noted that:
In Borges v. State, we adopted the test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), for determining whether two statutory offenses, when ostensibly violated by a single act of the accused, are intended to be separately prosecuted and punished. There it was said that the "applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182.
Following Gibson, the district court in Parker v. State, 482 So.2d 576 (Fla. 5th DCA 1986), concluded that separate convictions for aggravated battery and possession of a firearm in the commission of the aggravated battery (as here) were permissible because each crime required proof of an element which the other did not. Specifically, aggravated battery requires proof of a battery, which is not required for the offense of possession of a firearm while committing a felony; and the possession statute requires proof of use, concealment or display of a firearm, which is not required to prove aggravated battery (since it may alternatively be based on the causing of great bodily harm, or permanent disability or disfigurement). We conclude that the Parker court correctly applied the Gibson test, and that under Gibson and Borges the separate convictions in the present case do not violate double jeopardy.
Appellant's sentence constituted an upward departure from the guidelines and contained two mandatory minimum terms. Departure was supported by five written reasons, the state conceding that the third, fourth and fifth reasons are invalid.
The first reason given for departure was the physiological and emotional trauma to the victim. It is not permissible to consider physical injury to the victim where victim injury has already been taken into account in determining the guidelines range. See State v. Mischler, 488 So.2d 523 (Fla.1986). Since emotional and psychological trauma suffered by the victim of an aggravated assault is not a valid reason for departure, State v. Cote, 487 So.2d 1039 (Fla.1986), we hold that trauma is not a valid reason where the offense is aggravated battery. Thus, the first reason is not a valid basis for departure.
The second reason given by the trial court for departure was the creation of a risk of harm to innocent bystanders. This court has held that creation of an unreasonable risk of harm to others is a valid reason for departing from the guidelines. See Campbell v. State, 486 So.2d 61 (Fla. 4th DCA 1986); Hannah v. State, 480 So.2d 718 (Fla. 4th DCA 1986). In the present case the appellant fired two shots in a crowded auditorium, thus the facts support departure on this basis.
This leaves us with the question whether, pursuant to Albritton v. State, 476 So.2d 158 (Fla.1985), we should remand this case to the trial court for reconsideration of the sentence imposed since four of the five reasons given have been found invalid.
We note that the court's order of departure contains the following language: In The Florida Bar re: Rules of Criminal Procedure, 482 So.2d 311 (Fla.1985), the supreme court declined to adopt the following language from the committee notes to the sentencing guidelines rule:
"Where deemed appropriate, the sentencing courts may include the following language in the written statement articulating the reasons for departures: If one or more of the foregoing reasons for departure are determined, upon appellate review, to be impermissible, it would still be the decision of this court to depart from the guidelines recommended sentence, upon the basis of the remaining permissible reason...
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Whitfield v. State, 4-86-2448
...that the crime created a great risk of harm to innocent bystanders and multiple victims is normally a valid reason, Previlon v. State, 500 So.2d 716 (Fla. 4th DCA 1987), so long as the fact that appellant endangered the lives of others is proven beyond a reasonable doubt. Ortagus v. State, ......
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