Rosado v. State, 95-3056

• Decision Date: 16 April 1997
• Docket Number: No. 95-3056,95-3056
• Citation: Rosado v. State, 691 So.2d 595 (Fla. App. 1997)
• Parties: 22 Fla. L. Weekly D958 Ali ROSADO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 595

691 So.2d 595

22 Fla. L. Weekly D958

Ali ROSADO, Appellant, v. STATE of Florida, Appellee.

No. 95-3056.

District Court of Appeal of Florida Fourth District.

April 16, 1997.

Steven J. Hammer of the Law Offices of Steven J. Hammer, Fort Lauderdale, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Aubin Wade Robinson, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, Judge.

Defendant was charged with first degree murder in connection with the beating death of 38-year old man by a group of youths. The evidence showed, and the state so argues, that his participation in the crime was limited to a single blow to the head of the victim. ¹ Another member of the gang repeatedly punched and kicked the victim when he attempted to defend himself, and also hit him with a laundry cart. The victim died from a rupture to his liver, causing him to bleed to death.

In an open plea, defendant pleaded nolo contendere to manslaughter. The guidelines scoresheet stated a recommended sentence of 74.4 months, with a permitted range of 55.8 to 93 months. The trial judge departed with an enhanced sentence of 10 years, followed by 5 years probation. The judge stated his reason by checking a box on the sentencing form and adding the following: ²

"[ ] Victim especially vulnerable due to age or physical or mental disability. Blow by defendant left victim particularly vulnerable to subsequent injuries suffered at his hand and hands of codefendants."

The state argues that this departure is proper, citing Carter v. State, 550 So.2d 1130 (Fla. 3d DCA 1989), rev. denied, 553 So.2d 1164 (Fla.1989). Defendant argues that the stated reason is improper because it essentially inheres in the crime itself: i.e. it is little more than a holding that defendant's single blow was effective to its purpose. We agree and reverse.

This statutory reason for an enhancement departure comes from section 921.0016(3)(j), Florida Statutes (1995), which provides:

"(3) Aggravating circumstances under which a departure from the sentencing guidelines is reasonably justified include ... (j) The victim was especially vulnerable due to age or physical or mental disability."

This statutory text clearly covers vulnerability due to age, physical disability, and mental disability. There is nothing in this provision, however, to suggest that it includes vulnerability arising from the crime itself.

In Wemett v. State, 567 So.2d 882 (Fla.1990), the court said "a departure cannot be based on factors common to nearly all victims of similar crimes." 567 So.2d at 886. Since the decision in Wemett, the legislature has substantially revised the sentencing guidelines, effective to crimes committed after January 1, 1994. See Ch. 93-406, Laws of Fla. According to the supreme court:

"Existing caselaw construing the application of sentencing guidelines that is in conflict with the provisions of this rule or the statement of purpose or the principles embodied by the 1994 sentencing guidelines set out in subsection 921.001(4) is superseded by the operation of this...