Simmons v. State, 89-1240
| Decision Date | 13 December 1990 |
| Docket Number | No. 89-1240,89-1240 |
| Parties | 15 Fla. L. Weekly D2997 Irvin SIMMONS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender and Glen P. Gifford, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.
Irvin Simmons appeals the departure sentence imposed upon him after entering a plea of nolo contendere to burglary of a dwelling, aggravated battery, and use of a firearm in the commission of a felony. §§ 784.045(1)(b), 790.07(2), 810.02(2)(b), Fla.Stat. (1987). We affirm.
Simmons' history of convictions is as follows:
Date Illegal Activity Disposition
March 28, Battery: Simmons held the victim while Committed to
1984 co-defendant struck victim repeatedly with a juvenile
broomstick. arbitration
program
October 5, Criminal mischief and throwing deadly missile: Adjudicated
1984 Simmons threw concrete into a vehicle, striking delinquent and
its occupant and requiring stitches on the placed on
victim's right temple. community
control
August 10, Retail theft and violation of community control: Adjudicated
1985 A store sensor alerted, and Simmons was found delinquent and
shoplifting a pair of shorts valued at $28. placed on
community
control
November Battery, disorderly conduct, culpable negligence Adjudicated
6, 1985 by exposing another to personal injury: Simmons delinquent and
pushed victim into street after striking her in committed
chest with both hands and knocking her down
October Criminal mischief: Simmons inflicted $200 in Adjudicated
25, 1987 damages to a police car after his arrest for a delinquent and
traffic violation. placed on
community
control.
April 14, Burglary of a dwelling, aggravated battery, and
1988 use of firearm in commission of felony.
(Instant
Case)
*1385 ----------
On April 14, 1988, Simmons entered a residence by removing a screen from a bedroom window. The residence had the appearance of being occupied and in fact was occupied. Initially avoiding discovery, Simmons took the occupant's wallet but, upon opening the bedroom door, confronted the victim who was standing behind it. Simmons stepped back, raised the .38-caliber handgun he was carrying, and fired three or four times. The victim was struck twice in the right forearm and once in the left shoulder. Simmons then ran out of the residence, joined a co-defendant waiting for him in a getaway car, and stated, "I shot that motherfucker." A witness gave a description of the vehicle to the police, and Simmons was subsequently stopped and arrested later that day.
The trial court gave five reasons for the departure:
(1) The victim's scarring and disfigurement;
(2) Timing, in that Simmons was on community control at the time of commission of the offense;
(3) Circumstances surrounding the aggravated battery so egregious and serious as to require a departure sentence (The trial court also recited the facts of the crime.);
(4) Failure of past rehabilitation and improbability of future rehabilitation;
(5) Simmons' continuing and persistent pattern of criminal conduct.
Reasons one, two, and four are invalid. Lambert v. State, 545 So.2d 838, 842 (Fla.1989) (); Hall v. State, 517 So.2d 692 (Fla.1988) (); Ellis v. State, 559 So.2d 292 (Fla. 5th DCA 1990); Maddox v. State, 553 So.2d 1380 (Fla. 5th DCA 1989) ().
Reason number three is valid under Vanover v. State, 498 So.2d 899 (Fla.1986). In Vanover, the defendant testified that the two alleged victims were brothers who were intimidating him and attempting to force him to leave his home so they could steal $1,300 contained in the home. The defendant brandished his gun to frighten the brothers into leaving, but the first brother said: "Old man, if you got enough nerve to pull that trigger, shoot me in my mouth because if you don't shoot me, I'm going to take it away from you and shoot you." Id. at 900. The defendant accepted the...
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