Simpson v. State, BJ-453

• Decision Date: 15 April 1987
• Docket Number: No. BJ-453,BJ-453
• Citation: 505 So.2d 1378,12 Fla. L. Weekly 1035
• Parties: 12 Fla. L. Weekly 1035 Vaughn R. SIMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1378

505 So.2d 1378

12 Fla. L. Weekly 1035

Vaughn R. SIMPSON, Appellant, v. STATE of Florida, Appellee.

No. BJ-453.

District Court of Appeal of Florida First District.

April 15, 1987.

On Motion for Rehearing

May 5, 1987.

Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

ON MOTION FOR REHEARING

ZEHMER, Judge.

In its motion for rehearing the state argues that our original opinion, 502 So.2d 61, misunderstood the trial court's reasons for departing from the sentencing guidelines.

First, the state contends we overlooked or misapprehended the trial court's third reason for departing from the sentencing guidelines. The trial court gave as its third reason for departure that "[n]one of the four victims were armed--nor did they pose any threat to the defendant. Yet, he shot two of them without provocation." The state argues that the trial court did not merely cite to a "lack of provocation," but also noted the vulnerability of the victims. The state cites Von Carter v. State, 468 So.2d 276 (Fla. 1st DCA 1985) and Hadley v. State, 488 So.2d 162 (Fla. 1st DCA 1986), for the proposition that vulnerability of the victims is a valid ground for departure. In the cases cited by the state, the victims were females aged eighty-six and sixty, respectively, who lived alone. Because the court found that the victims were particularly vulnerable, it allowed departure from the sentencing guidelines. As no similar showing of vulnerability of the victims has been made in this case, however, departure was not justified. As stated in our original opinion, the lack of provocation has been disapproved as a reason for departure. See Gibson v. State, 489 So.2d 836 (Fla. 3d DCA 1986) (lack of provocation a common ingredient in armed robbery); Baker v. State, 466 So.2d 1144 (Fla. 3d DCA 1985), approved, 483 So.2d 423 (Fla.1986) (lack of provocation an inherent component of armed robbery); Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984), approved, 476 So.2d 165 (Fla.1985) (lack of provocation an inherent component of any robbery, and hence may properly be viewed as already embodied in the guidelines recommended sentencing range).

As part of its fourth reason for departure, the trial court stated, "[T]he victims have been emotionally ravaged and psychologically traumatized." The state contends we erroneously rejected "emotional trauma" as a valid ground for departure from the guidelines sentence for robbery. The state argues that robbery, as defined by section 812.13, Florida Statutes (1985), carries no element of emotional trauma and that it is wrong to equate "inherent component" of the crime with "element" of the crime. While we do not equate "inherent component" of the crime with "element" of the crime, the supreme court has held that a court cannot "use an inherent component of the crime in question to justify departure." State v. Mischler, 488 So.2d 523, 525 (Fla.1986). Thus, the question is whether emotional trauma is an inherent component of robbery.

Section 812.13 defines robbery as the "taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear" (emphasis added). The second district has applied the supreme court's analysis in State v. Cote, 487 So.2d 1039 (Fla.1986) (causing fear and resulting psychological trauma is by statutory definition an inherent component of the crimes of assault and aggravated assault) to the robbery statute and concluded that "the causing of fear and resulting psychological trauma is by statutory definition an inherent component of the crime of robbery and, thus, not a valid reason for departure." Williamson v. State, 496 So.2d 886, 887 (Fla. 2d DCA 1986). The court went on to say that there may, however, be "instances where the record reveals that the psychological trauma resulting from an offense is so extensive that a departure may be justified." Id. at 888. See also Konyves v. State, 501 So.2d 127 (Fla. 2d DCA 1987) (in order to support departure, emotional trauma to armed robbery victim must arise from extraordinary circumstances which are clearly not inherent in the offense charged); Grant v. State, 12 F.L.W. 236 (Fla. 4th DCA Jan. 16, 1987) (even though fear and or emotional trauma are inherent components of the crime of robbery, they were a proper basis for departing in this case because the victim's trauma was greater than that usually associated with a simple robbery). But see Sias v. State, 487 So.2d 1180 (Fla. 3d DCA 1986) (psychological trauma not an inherent component of robbery).

In Mash v. State, 499 So.2d 35 (Fla. 1st DCA 1986), this court did not reach the issue of whether emotional or psychological trauma is an inherent component of armed robbery. The court, noting the conflict among the districts, instead stated, "Regardless of whether psychological trauma is or is not an inherent component of armed robbery, the evidence in this case does not indicate that the victim suffered such unusual trauma as would support a departure." Mash at 143.

We agree with the Second and Fourth districts that emotional or psychological trauma is an inherent component of armed robbery and, thus, is not a valid reason for departure from the sentencing guidelines. Further, there has been no showing by the state that the victims' trauma in this case was "greater than that usually associated with simple robbery." Grant, supra. We recognize, however, that this holding conflicts with the Third district's opinion in Sias, and therefore certify to the supreme court the following question of great public importance:

WHETHER EMOTIONAL OR PSYCHOLOGICAL TRAUMA IS AN INHERENT COMPONENT OF ARMED ROBBERY AND, THUS, NOT A VALID REASON FOR DEPARTURE FROM THE SENTENCING GUIDELINES?

Finally, the state contends that we erred in rejecting "getting shot" as a valid ground for departure from the guidelines sentence for attempted murder. The state argues that someone's being shot in the course of an attempted murder is a "circumstance surrounding the offense," not an "element" or "inherent component" of the crime, but it cites no authority for...