Vanover v. State
| Decision Date | 26 November 1986 |
| Docket Number | No. 68254,68254 |
| Citation | 498 So.2d 899,11 Fla. L. Weekly 614 |
| Parties | 11 Fla. L. Weekly 614 Creed Martin VANOVER, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, Tenth Judicial Circuit, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for petitioner.
Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent.
In Vanover v. State, 481 So.2d 31 (Fla. 2d DCA 1985), the Second District upheld Vanover's sentence, imposed in excess of the guidelines, and found the trial court's written reasons justifying such departure valid, clear and convincing. We find conflict with our decision of Hendrix v. State, 475 So.2d 1218 (Fla.1985), and so exercise our jurisdiction under article V, section 3(b)(3) of the Florida Constitution. We approve in part and quash in part the decision under review.
Vanover was charged with two counts of aggravated battery after shooting each of two brothers visiting him in his home. The factual scenario underlying the shootings is somewhat unclear. According to the brothers' testimony, Vanover suddenly pulled his gun out from under a sofa cushion during the course of a casual conversation, backed up into the kitchen, and threatened to shoot one of the brothers. He then shot one of the brothers in the mouth. When the other returned from the bathroom, Vanover shot him as well. Both victims then fled from the house and sought treatment at a local emergency center.
Vanover, who had no prior criminal record and is fifty-three years old, testified that the brothers were aware that he had within his home $1,300, the proceeds from the sale of his truck, and that the brothers began to intimidate him and force him to leave the home so that they could steal the money. After pulling out the gun in order to frighten the brothers into leaving, Vanover testified, the first brother said "old man, if you got enough nerve to pull that trigger, shoot me in my mouth because if you don't shoot me, I'm going to take it away from you and shoot you." Vanover then shot him in the mouth. When the second brother allegedly jumped towards him, Vanover shot him with a bullet which passed through his upper left arm and entered his back.
The jury convicted Vanover of aggravated battery on the second brother, but found him not guilty on the other charge. In departing from the presumptive guidelines sentence and sentencing Vanover to ten years imprisonment, the trial court offered the following written reasons for departure:
1. The charge of Aggravated Battery with a Firearm requires a minimum mandatory sentence of at least three years in the Department of Corrections.
2. The offense of shooting Kim Carevic was done without any moral or legal justification.
3. The defendant intended to murder Kim Carevic, and it was only by a stroke of luck that Kim Carevic avoided being murdered.
4. The manner of the shooting of Kim Carevic, being at close range and at the body of the victim, created a great risk of serious bodily harm and/or death to the victim.
5. This was a particularly aggravated set of circumstances which sets this case far and above the average Aggravated Battery.
481 So.2d at 32. We find the first and last reasons provided valid, but the remaining reasons are neither valid nor clear and convincing. We must therefore remand to the district court with instructions to remand to the trial court for resentencing. Albritton v. State, 476 So.2d 158 (Fla.1985); State v. Young, 476 So.2d 161 (Fla.1985).
The first reason is valid, as Florida Rule of Criminal Procedure 3.701(d)(9) provides that
The second reason is not clear and convincing, as it is "ambiguous and lacking in clarity for failure to relate to any identified fact in the context of this case." Burch v. State, 462 So.2d 548, 548 (Fla. 1st DCA), approved, 476 So.2d 663 (Fla.1985), citing Alford v. State, 460 So.2d 1000 (Fla. 1st DCA 1984). Far from producing in the mind of a reviewing judge "a firm belief or conviction, without hesitancy, that departure is warranted," State v. Mischler, 488 So.2d 523, 525 (Fla.1986), this reason for departure is chosen from a laundry list of aggravating factors and tells us nothing.
We find the third reason invalid because the trial court could not have properly departed from the guidelines based on a crime with which petitioner was not charged, tried on, or convicted of. Florida Rule of Criminal Procedure 3.701(d)(11) provides that "[r]easons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained." As in Sloan v. State, 472 So.2d 488, 490 (Fla. 2d DCA 1985), approved in part, quashed in part, 491 So.2d 276 (Fla.1986), we must hold that "[t]he presence of that comment within the stated [grounds for departure] more than supports our view that the trial court, at the very least, found the higher crime, for which there was no conviction, a significant element in the determination to depart from the presumptive sentence." We therefore find the reason an invalid basis for departure. See Marshall v. State, 468 So.2d 255 (Fla. 2d DCA), review denied, 472 So.2d 1181 (Fla.1985).
We additionally find the fourth reason for departure invalid, and quash the district court on this point. Because the extent of victim injury is calculated into the guidelines score in aggravated battery cases, Florida Rule of Criminal Procedure 3.988(d), we find departure from the guidelines based on the same factor impermissible. As we noted in...
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...See, e.g., State v. McCall, 524 So.2d 663, 665 (Fla.1988); Hall v. State, 517 So.2d 692, 694-95 (Fla.1988); Vanover v. State, 498 So.2d 899, 900-01 (Fla.1986). It necessarily follows that a departure cannot be based on factors common to nearly all victims of similar crimes. Otherwise, the e......
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