State v. Vanhorn
| Decision Date | 31 May 1990 |
| Docket Number | No. 74457,74457 |
| Citation | 561 So.2d 584 |
| Parties | 15 Fla. L. Weekly S327 STATE of Florida, Petitioner, v. Timothy VANHORN, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen., and Yvette Rhodes Prescott and Michael J. Neimand, Asst. Attys. Gen., Miami, and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for petitioner.
Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, Miami, for respondent.
We have for review Vanhorn v. State, 545 So.2d 971 (Fla. 3rd DCA 1989), based on certified conflict with Brown v. State, 535 So.2d 332 (Fla. 1st DCA 1988); Dyer v. State, 534 So.2d 843 (Fla. 5th DCA 1988); and Waldron v. State, 529 So.2d 772 (Fla. 2d DCA 1988). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Vanhorn was charged by information with several offenses committed on March 11, 1984. He pleaded guilty to some of the charges and was sentenced on July 5, 1984--only four days after amendments to the sentencing guidelines took effect. Under the former guidelines, Vanhorn's recommended sentence was between five and a half and seven years' imprisonment. Under the amendments, however, the range was twelve to seventeen years. Over a defense objection, the trial court used the amended guidelines and imposed a sentence of seventeen years. However, the judge denied a separate state request to depart upward and thereby impose a more severe sentence.
Vanhorn unsuccessfully sought appellate relief in the state courts alleging an ex post facto violation. Vanhorn v. State, 485 So.2d 1380, 1381 (Fla. 3rd DCA 1986), approved, 498 So.2d 426 (Fla.1986). Eventually, Vanhorn won his claim in a habeas action filed in federal district court. Based on the subsequent decision of the United States Supreme Court in Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), the district court judge ordered Florida to conduct a new sentencing hearing for Vanhorn.
At resentencing, the state again asked the trial court to impose a departure sentence. Vanhorn, however, contended that departure also would violate the ex post facto clause of the Constitution, since the trial court had declined to impose such a sentence before. Nevertheless, the trial court agreed with the state and imposed a departure sentence totaling seventeen years. It gave the following reasons:
1. Defendant has exhibited an escalating pattern of criminal behavior which has become violent in nature.
2. The victims in this case were particularly vulnerable, being women of advanced years, 82 and 69, and the court does not depart for this reason based on gender alone.
3. The court finds that the weapon used in the assault in this case was brought with the defendant adding a heightened degree of premeditation.
The court would depart for any of the above reasons independent of the others.
Vanhorn again appealed to the Third District Court. Based on its decision in Harrison v. State, 523 So.2d 726 (Fla. 3rd DCA 1988), the district court reversed the departure sentence and remanded for imposition of a guidelines sentence.
As Vanhorn now acknowledges, this Court subsequently has disapproved the Third District Court's Harrison opinion. Roberts v. State, 547 So.2d 129, 131 (Fla.1989). Thus, a departure sentence is permissible on remand if the trial court erroneously believed it was imposing a sentence falling within the guidelines' range while giving no reasons for what amounted to a de facto upward departure. Id. See also Jones v. State, 540 So.2d 245 (Fla. 4th DCA 1989), approved in part and quashed in part, 559 So.2d 204 (Fla.1990); Brown; Dyer; Waldron. Accordingly, the trial court properly considered the state's request for a departure sentence in the remand at issue here.
Vanhorn, however, also argues that the reasons for departure in this instance were invalid--an issue that he concedes he did not raise in his pro se appeal to the Third District Court. However, we need not consider whether a procedural bar applies in this instance because we believe one of the reasons is both valid and supports the trial court's departure sentence beyond any reasonable doubt....
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Dow v. State
...sentencing guidelines in these cases, it may impose departure sentences on remand if supported by valid written reasons. State v. Vanhorn, 561 So.2d 584 (Fla.1990). We affirm Michael Dow's sentences (No. 90-00413), because the trial court's written reasons for departure were valid. See Stat......
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Smith v. State, 89-324
...(1987).4 Fla.R.Crim.P. 3.701d.14.1 The defendant was sentenced to probation as to Count V of Case 88-2746.2 Compare State v. Vanhorn, 561 So.2d 584 (Fla.1990) (escalating pattern found where defendant had committed disturbing the peace, then burglary, then burglary of a dwelling with threat......
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Williams v. State, 90-3461
...that the trial court did not realize that the sentence it gave Williams was a departure from the guidelines. See State v. Vanhorn, 561 So.2d 584, 585 (Fla.1990); Jones v. State, 582 So.2d 181, 181-82 (Fla. 4th DCA In summary, we affirm the trial court's imposition of $20.00 in victim costs ......
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Pearson v. State, 94-187
...is a factor that has been approved by the Florida Supreme Court as a basis for departure from the guidelines sentence. State v. Vanhorn, 561 So.2d 584, 585 (Fla.1990); Keys v. State, 500 So.2d 134 (Fla.1986). Moreover, "[a] written notation on the scoresheet has been held to fulfill the req......