Smith v. State
| Decision Date | 22 June 1988 |
| Docket Number | No. 87-1123,87-1123 |
| Citation | 526 So.2d 1060,13 Fla. L. Weekly 1471 |
| Parties | 13 Fla. L. Weekly 1471 Tarrence L. SMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Anthony L. Bajoczky of Barrett & Bajoczky, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Appellant Tarrence L. Smith has appealed the departure sentence imposed upon his conviction for armed robbery, contending the trial court relied upon an improper reason to exceed the recommended guideline sentence. For the reasons set forth below, we approve the sentence imposed.
In his first appearance before this court, reported in Smith v. State, 507 So.2d 788 (Fla. 1st DCA 1987) (Smith I ), appellant challenged both his conviction and the departure sentence imposed thereon. Appellant's conviction was affirmed, but the case was remanded for resentencing due to improper calculation of the guideline score and because only one of three reasons provided for departure was determined to be valid. On remand, the trial court again departed from the recommended guideline sentence, albeit to a lesser extent. The case is now before us on appeal from the second departure sentence.
A detailed recitation of the facts is set forth in Smith I. Briefly stated, on October 4, 1985, Moreland, the owner of a gun shop and the victim of the armed robbery which is the subject of this appeal, was talking to a customer when two youths entered his shop. As the customer left, one of the youths approached Moreland and engaged him in a discussion about weapons. The other youth approached Moreland from behind, and stabbed him in the back. As a result of the attack, Moreland's spine was severed, and he was rendered a quadriplegic. After the stabbing, the youth who had engaged Moreland in conversation left the shop. The other youth went behind the counter and took two guns.
Based on fingerprints and other leads, the police began questioning Stanley Cannon about the robbery. At first, Cannon denied any involvement. Subsequently, he admitted being present when the crime occurred, and identified appellant as the person who stabbed Moreland. Appellant was arrested and charged with attempted first degree murder and armed robbery.
Testimony at trial revealed that Cannon made many inconsistent statements during the investigation, and that although Cannon had not been offered a deal in exchange for his testimony, the police chief testified that he agreed to make the state's attorney aware of Cannon's cooperation. Since the victim and the store customer could not identify appellant, Cannon's testimony at trial as to appellant's involvement was uncorroborated. The jury found appellant guilty of armed robbery, but found him not guilty as to the charge of attempted first degree murder and all lesser included offenses.
The recommended guideline sentence was 5 1/2 to 7 years, based on a scoresheet which included 21 points for victim injury. The trial court departed from the guideline sentence, imposing a 25-year sentence to be followed by a 15-year period of probation. The departure in Smith I was based on (1) the severity of the victim's injury, (2) the extreme cruelty and excessive use of force in the commission of the robbery, and (3) the escalating pattern of criminal conduct.
This court reversed the sentence, finding that victim injury had been improperly scored because it is not an element of the offense of armed robbery. The court noted, however, that since victim injury is one of the circumstances surrounding the offense, "the trial judge may properly rely on the extent of victim injury as a ground for departure where it has not already been considered in calculating the recommended sentence." Smith I, 507 So.2d at 791. The court disapproved excessive use of force and extreme cruelty as a reason for departure, finding it based upon the stabbing injury to the victim, which gave rise to the charge of attempted murder. Since the jury acquitted appellant of attempted murder, the second reason predicated on the act of stabbing was held an improper basis for departure. The third reason was also disapproved, because the evidence of an escalating pattern of criminal conduct was insufficient to support departure. In conclusion, this court held that--
[b]ecause only one of the trial judge's three reasons for departure is valid, and because the points for victim injury were improperly scored, we must reverse and remand for resentencing.
Smith I, 507 So.2d at 791. On remand, the corrected scoresheet placed the recommended guideline sentence in the 4 1/2 to 5 1/2 year range. The trial court imposed a 17-year sentence, to be followed by a 15-year period of probation. The trial court's written reason for departure states:
The victim, Hugh Moreland, was severely injured and rendered quadriplegic in the course of this robbery in which the defendant participated. Victim injury is not an element of the offense of robbery and is not factored into the sentencing guidelines. The physical and psychological trauma suffered by the victim in this case requires an increased "measure of punishment." Vanover vs. State, 481 So.2d 31 (2nd DCA 1985). Additionally, the victim's trauma resulted from "extraordinary circumstances" which are clearly not inherent in the crime of robbery and the victim has a "discernible physical manifestation resulting from the trauma." State v. Rousseau, 509 So.2d 281 (Fla.1987).
In challenging the propriety of the second departure sentence, appellant's initial brief focused on the applicability of the amended sentencing guidelines which provide that victim injury shall be scored, whether it is an element of the convicted offense or merely incidental to the criminal transaction. Appellant urged that under the original and now accurate scoresheet, the appropriate guideline range is 5 1/2 to 7 years, and this court's opinion in Smith I should be modified to comport with the recent amendments. See Florida Rules of Criminal Procedure re: Sentencing Guidelines, 509 So.2d 1088 (Fla.1987). Appellant further asserted that no ex post facto question is involved.
In response, the state asserts that since the current guidelines would not have an ameliorative effect in this case, an ex post facto question clearly is involved. Citing Miller v. Florida, 482 U.S. ----, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), the state maintains that under current law, appellant would be subject not only to scored points for victim injury, but also to less stringent standards for departure.
In his reply brief, appellant urges the alternative argument that victim injury is not a proper basis for departure, because it was a circumstance surrounding the attempted murder charge for which he was acquitted. Appellant further argues that the trial court's reliance on Rousseau is misplaced, contending that Rousseau holds that psychological trauma may constitute a clear and convincing reason for departure only if the victim has a discernible physical manifestation as a result of the trauma. According to appellant, the physical manifestation in this case is the victim's paralysis which resulted from the stab wound, and not from psychological trauma.
In Miller v. Florida, the Supreme Court held that the Florida guidelines in effect at the time of commission of an offense must be applied if a later amended version of the applicable guidelines has the potential to increase the quantum of punishment. See also Wilkerson v. State, 513 So.2d 664, 665 (Fla.1987). The robbery which is the subject of this appeal took place on October 4, 1985. The 1987 revisions to the sentencing guidelines have the potential to increase the severity of a sentence by virtue of an increase in points for the enumerated offenses, the fact that points may now be scored for victim injury when victim injury is not an element of the convicted offense, and the reduction in the standard of proof needed to support a departure. Therefore, in light of Miller and Wilkerson, we find the state has correctly argued that the amended guidelines are not applicable in this case. 1
It is well settled that psychological trauma which is the type of trauma experienced by any victim of the particular offense is not a sufficient reason to depart from the recommended guidelines range. State v. Rousseau, 509 So.2d 281, 283 (Fla.1987). For example, in Lerma v. State, 497 So.2d 736 (Fla.1986), the court held the emotional hardship suffered by a victim of sexual battery cannot justify departure because nearly all sexual battery cases inflict emotional hardship on the...
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