Thorne v. State, 85-2705
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | SCHEB; GRIMES, A.C.J., and RYDER |
| Citation | 11 Fla. L. Weekly 2219,496 So.2d 891 |
| Parties | 11 Fla. L. Weekly 2219 Richard James THORNE, Appellant, v. STATE of Florida, Appellee. |
| Docket Number | No. 85-2705,85-2705 |
| Decision Date | 17 October 1986 |
Page 891
v.
STATE of Florida, Appellee.
Second District.
Page 892
James Marion Moorman, Public Defender, and D.P. Chanco, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
SCHEB, Judge.
Defendant Richard Thorne appeals his judgment of conviction and his sentences for four counts of armed robbery. He argues the trial judge improperly departed from the recommended guidelines sentence.
The defendant was convicted of four counts of armed robbery. Three of the counts involved the use of a firearm. The recommended guidelines sentence range was five and one-half to seven years' imprisonment. The trial court sentenced the defendant to four consecutive five-year sentences on the four counts with three consecutive three-year minimum mandatory sentences for the three counts involving firearms. The trial judge gave the following written reasons for departure: "(1) minimum mandatory is greater, (2) charges constituted a 'crime wave'; his prior record of behavior of this assaultive nature makes him a continuing threat to the public, (3) potential danger to victims; involved use of a dangerous weapon; involved multiple victims."
As to the court's first reason, we observe that the recommended guidelines sentence for the four offenses was less than the three consecutive three-year minimum mandatory sentences imposed for the robberies involving the use of a firearm. Where, as here, the recommended guideline sentence is less than the minimum mandatory sentence, the minimum mandatory sentence takes precedence. Fla.R.Crim.P. 3.701(d)(9); Prentice v. State, 469 So.2d 798 (Fla. 2d DCA 1985). Furthermore, the court's imposition of three consecutive minimum mandatory sentences was consistent with State v. Thomas, 487 So.2d 1043 (Fla.1986), because each robbery was a separate and distinct offense involving a separate and distinct victim. See also James v. State, 462 So.2d 858 (Fla. 2d DCA 1985).
The court's second reason for departure is invalid because it is based on the defendant's prior record and involves factors already taken into account in calculating the guidelines sentence. Hendrix v. State, 475 So.2d 1218 (Fla.1985). See also Williams v. State, 492 So.2d 1308 (Fla.1986); McCray v. State, 488 So.2d 912 (Fla. 2d DCA 1986).
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Lumpkin v. State, 86-3058
...Extreme risk to the physical safety of the victims of an armed robbery is inherent in the nature of the crime. Thorne v. State, 496 So.2d 891 (Fla. 2d DCA 1986); Olive v. State, 489 So.2d 893 (Fla. 3d DCA 1986). It is therefore already factored into the guidelines and is an invalid reason f......
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State v. Lemon, 87-1334
...299 (Fla.1987); Knight v. State, 501 So.2d 150 (Fla. 1st DCA 1987); Colvin v. State, 501 So.2d 118 (Fla. 2d DCA 1987); Thorne v. State, 496 So.2d 891 (Fla. 2d DCA 1986); Speights v. State, 495 So.2d 882 (Fla. 2d DCA), review denied, 501 So.2d 1283 3 The record discloses that the sentence im......
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Crosby v. State, 87-495
...Compare Lumpkin v. State, 510 So.2d 1164 (Fla. 3d DCA 1987); Abdullah v. State, 510 So.2d 621 (Fla. 2d DCA 1987) and Thorne v. State, 496 So.2d 891 (Fla. 2d DCA 1986) with Scurry v. State, 489 So.2d 25 (Fla.1986); Ventosa v. State, 510 So.2d 1093 (Fla. 1st DCA 1987); Rey v. State, 509 So.2d......
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Walker v. State, 87-1116
...State, 475 So.2d 1218 (Fla.1985). See Hudson v. State, 504 So.2d 2 (Fla. 2d DCA 1986) (threat to society impermissible); Thorne v. State, 496 So.2d 891 (Fla. 2d DCA 1986) (threat to society impermissible reason to depart); Dowling v. State, 495 So.2d 874 (Fla. 5th DCA 1986) (reason that "th......