Scurry v. State

Decision Date05 June 1986
Docket NumberNo. 67589,67589
Citation11 Fla. L. Weekly 254,489 So.2d 25
Parties11 Fla. L. Weekly 254 Willie SCURRY, Jr., Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Office of the Public Defender, Second Judicial Circuit, and Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for petitioner.

Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.

PER CURIAM.

We have for review Scurry v. State, 472 So.2d 779 (1st DCA 1985), in which the district court certified the following as a question of great public importance:

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLA.R.CR.P. 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO DETERMINE IF THOSE REASONS JUSTIFY DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENCING.

Id. at 782. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution.

The essential facts, as recounted in the district court's opinion, are as follows:

Scurry was charged by indictment with the first degree murder with a firearm of his brother, John Wayne Scurry. Following a jury trial, Scurry was found guilty of the lesser included offense of second degree murder with a firearm. At the sentencing hearing, the trial judge departed from the recommended guidelines sentence of 12-17 years, and sentenced Scurry to 30 years imprisonment. The court's reasons for departure were the following:

1. The offense was carried out with particular cruelty in that the offense was committed in the presence of family members and close friends.

2. The defendant fired the fatal shot from a public street while the victim was in the doorway of his own home evincing a flagrant disregard for the safety of others.

3. The offense was planned by the defendant as evidenced by the fact that after he argued with the victim he walked approximately three tenths of a mile to get his rifle and returned the same distance to the scene and said to an undertaker along the route "wait here I'm gonna bring you one in a few minutes" or words to that effect. The defendant then sat down on a bench across from the victim's home for several minutes before he shot the victim.

4. The offense for which the defendant was sentenced was committed in a calculated manner without pretense of moral or legal justification or provocation.

5. The victim suffered great personal pain and injury as a result of the shooting, dying more than thirty hours after he was initially shot, during which time heroic medical and surgical procedures were performed in an effort to sustain his life.

6. The defendant showed no remorse for having committed the offense for which he was sentenced as evidenced by his courtroom demeanor and non-caring attitude throughout the proceedings.

7. The defendant committed the offense by using a rifle firearm.

8. The defendant, prior to committing the murder had been drinking. The defendant had begun drinking at approximately 8:00 a.m. on the Friday morning of the murder. The defendant has an established pattern of drinking as he did the morning of the murder.

9. The defendant has twice before been given periods of probation after convictions. Apparently the defendant learned nothing from these past periods of probation, in that he has not been able to conform his behavior to societal norms and standards.

10. A lesser sentence is not commensurate with the seriousness of the defendant's crime.

11. The sentence imposed in this case is necessary to deter others. The portion of Monticello in which the victim was killed is an area with small grocery stores that sell alcoholic beverages. Some of the people who hang around this portion of Monticello frequently drink to excess and cause trouble and problems. Frequently firearms and other deadly weapons are involved in the commission of crimes in this area. The crime was committed in front of one of these groceries where the defendant had been drinking prior to his murdering the victim in front of a number of these people.

12. The Parole and Probation Officer who prepared the presentence investigation recommended the defendant be sentenced outside the sentencing guidelines and receive not less than a 25 year commitment to the Department of Corrections.

13. In the court's opinion the evidence as presented could have easily sustained a conviction of murder in the first degree.

Id. at 780-781. The district court affirmed the trial court's sentence, finding only four, six and thirteen invalid, and concluding that the reliance on three impermissible reasons constituted only harmless error.

Petitioner argues that the district court did not go far enough in that none of the reasons the trial court set forth are clear and convincing reasons to depart from the recommended guidelines sentence. We agree. Florida Rule of Criminal Procedure 3.701(d)(11) seeks to discourage unwarranted departures from the sentencing guidelines. Albritton v. State, 476 So.2d 158 (Fla.1985). Neither reasons prohibited by the guidelines themselves, nor factors already taken into account in calculating the guidelines...

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  • Foster v. State
    • United States
    • Florida Supreme Court
    • October 22, 1992
  • Campbell v. State
    • United States
    • Florida District Court of Appeals
    • December 14, 1989
    ...firearm is an inherent component of the convicted offense. As such, it is an invalid reason for departure. See, generally, Scurry v. State, 489 So.2d 25, 28 (Fla.1986). Moreover, the state concedes that the facts in this case will not support a finding that appellant posed an unreasonable r......
  • J.M. v. State
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    • Florida District Court of Appeals
    • June 26, 1996
    ...cases, the bare fact that a probation officer recommends a particular sentence is not a valid reason to impose it. See Scurry v. State, 489 So.2d 25, 29 (Fla.1986); State v. Zlockower, 650 So.2d 692, 693 n. 2 (Fla. 3d DCA), dismissed, 659 So.2d 1091 (Fla.1995); Blanton v. State, 546 So.2d 1......
  • Hansbrough v. State, 67463
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    • Florida Supreme Court
    • June 18, 1987
    ...165 (Fla.1985). 2) Reason five--use of a dangerous weapon is inherent in armed robbery. See § 812.13; Mischler. 3) Reason 6--Scurry v. State, 489 So.2d 25 (Fla.1986) (lesser sentence than that given is not commensurate with the seriousness of the crime is not a valid reason for departure). ......
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