State v. Simpson, s. 70512

• Court: United States State Supreme Court of Florida
• Citation: 554 So.2d 506,14 Fla. L. Weekly 601
• Docket Number: Nos. 70512,70561,s. 70512
• Parties: 14 Fla. L. Weekly 601 STATE of Florida, Petitioner, v. Vaughn R. SIMPSON, Respondent. Vaughn R. SIMPSON, Petitioner, v. STATE of Florida, Respondent.
• Decision Date: 21 December 1989

Page 506

554 So.2d 506 14 Fla. L. Weekly 601 STATE of Florida, Petitioner,
v.
Vaughn R. SIMPSON, Respondent.
Vaughn R. SIMPSON, Petitioner,
v.
STATE of Florida, Respondent. Nos. 70512, 70561. Supreme Court of Florida. Dec. 21, 1989.

Page 507

Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for petitioner/respondent.

Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for respondent/petitioner.

KOGAN, Justice.

We have for review Simpson v. State, 502 So.2d 61 (Fla. 1st DCA 1987), and Simpson v. State, 505 So.2d 1378 (Fla. 1st DCA 1987) (supplementing earlier opinion on denial of rehearing), which certified the following questions of great public importance:

IS THE REGULARITY AND FREQUENCY, i.e., THE TEMPORAL PROXIMITY, OF OFFENSES SCORED ON THE SENTENCING GUIDELINES SCORESHEET A VALID GROUND FOR DEPARTURE FROM THE GUIDELINES RECOMMENDED SENTENCE?

502 So.2d at 62.

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

505 So.2d at 1380. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Vaughn R. Simpson was convicted in Duval County of several offenses stemming from two separate armed robberies on June 12, 1985, and June 14, 1985. As a result of the first incident, Simpson was convicted of attempted armed robbery, attempted first-degree murder and the use of a firearm during commission of a felony. As a result of the second, Simpson was convicted of armed robbery and aggravated battery. The guidelines' recommended sentence was seventeen to twenty-two years in prison. However, the trial court departed from the guidelines and imposed concurrent sentences of twenty-seven years. ¹

As part of a twenty-one page sentencing order in support of departure, ² the trial court recited that Simpson since age ten had been arrested sixteen times and charged with seventeen offenses including eight felonies. These were: (1) an assault resulting in a nonjudicial warning in 1975; (2) truancy resulting in a nonjudicial warning in 1975; (3) battery in 1978, resulting in probation with adjudication withheld; (4)

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aggravated battery in 1980, a charge that was dismissed by nolle prosequi; (5) burglary in 1981, a charge that was dismissed by nolle prosequi; (6) a separate burglary in 1981, resulting in community control; (7) criminal mischief in 1981, a charge that was dismissed; (8) a burglary and violation of community control in 1982, resulting in revocation of community control and commitment to the Florida Department of Health & Rehabilitative Services; (9) aggravated assault in 1982, a charge that was dismissed; (10) prowling in 1984, resulting in a fine of $139 in costs; (11) unlawful use of vehicle registration plate in 1984, resulting in $139 in court costs and forty-five days' probation; (12) battery in 1984, a charge that was dismissed by nolle prosequi; (13) trespass in 1984, resulting in a sentence of ten days' imprisonment on weekends; (14) prowling in 1984, with disposition unclear; (15) failure to appear in 1984, a charge that was dismissed by nolle prosequi; (16) failure to serve sentence in 1984, resulting in a sentence of six days' imprisonment on weekends; and (17) no valid driver's license in 1985, resulting in a sentence of one day plus payment of costs, which apparently was waived.

In further support of departure, the trial court gave the following characterization of Simpson's offenses, taken from police reports. In the first robbery, after ordering two men to lie on the floor, Simpson

asked for a screwdriver and Mr. Marcelli [the victim in the first robbery] told him that he was not going to get a screwdriver and that he was 'getting tired of this'. At that point, Mr. Marcelli got off the floor and started toward the defendant. The defendant and Mr. Marcelli moved from around the counter area and the defendant fired approximately three shots in the direction of Mr. Marcelli. Mr. Marcelli was struck, with one of the bullets, in the top right shoulder. The defendant fled the scene on foot.

In the second robbery, Simpson

pointed a chrome plated weapon at [a store attendant] and demanded her to give him the money. The defendant exited the store through the front door after directing the clerk to lie on the floor. After being advised of the robbery, several people who were walking up to the store confronted the defendant in an effort to stop him and one of these individuals [the second victim] ... was shot in the left shoulder by the defendant. The defendant fled on foot....

The trial court then gave the following specific reasons for departure, in addition to the other reasons already noted:

"1. The regularity or frequency with which the crimes were committed. One attempted armed robbery and attempted first degree murder was committed on June 12, 1985. Two days later on June 14, the defendant committed another armed robbery and aggravated battery.

2. During the two robberies the defendant fired his pistol six times--two of which shots were to intimidate and hasten the victims into compliance. Those wildly fired shots placed persons nearby at great risk. The other four shots were fired at unarmed victims (at one with premeditated intent to murder) and at the other with the intent to kill or maim.

3. None of the four victims were armed--nor did they pose any threat to the defendant. Yet, he shot two of them without provocation.

4. The actions of the defendant at both robberies were those of a deadly predatory animal taunting and terrifying its prey. In addition to the physical injuries, the victims have been emotionally ravaged and psychologically traumatized.

5. The acts of the defendant were not accidental or due to nervousness. If they had been, there probably would have been only one shooting. However, the defendant threatened and shot victims during both robberies--evincing a homicidal intent and a contempt for human life."

Simpson, 502 So.2d at 62.

On appeal, the district court found the first and second reasons valid and disallowed the rest. The district court specifically disallowed the fourth reason based on its finding that emotional trauma was inherent in the offense of robbery and that

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there was no showing of extraordinary circumstances creating trauma over and above that already inherent in the crime. However, the district court certified questions on the validity of the first and fourth reasons and recognized conflict with Sias v. State, 487 So.2d 1180 (Fla. 3d DCA 1986) (finding that trauma is not an inherent component of robbery). Since we accepted jurisdiction based on the certified questions, the scope of this review will be confined to these two issues alone.

As to the first certified question, this Court on several occasions has addressed the issue of departures based on the timing of crimes committed by a defendant. In Keys v. State, 500 So.2d 134, 135-36 (Fla.1986), we held that an escalating pattern of criminal conduct demonstrated by a series of crimes occurring over a ten-year period was a sufficient reason for departure. This conclusion was in keeping with our holding in State v. Mischler, 488 So.2d 523, 525 (Fla.1986), in which we stated that departure cannot be based on "an inherent component of the crime in question." An escalating pattern occurring over a decade is a factor that is not inherent in the offenses currently before a sentencing court, nor is it already factored into the guidelines. See id.; Hendrix v. State, 475 So.2d 1218, 1220 (Fla.1985).

In Williams v. State, 504 So.2d 392 (Fla.1987) ("Williams I "), we addressed a similar criminal record. The defendant in Williams I had committed a series of crimes beginning with an arson when he was sixteen years old and escalating over the next six years to include several acts of burglary and aggravated battery. Several of the offenses were committed only months after the defendant's release from prison. Thus, in Williams I...