Vega v. State, 86-116

• Decision Date: 13 November 1986
• Docket Number: No. 86-116,86-116
• Citation: 11 Fla. L. Weekly 2383,498 So.2d 1294
• Parties: 11 Fla. L. Weekly 2383 Elvin VEGA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1294

498 So.2d 1294

11 Fla. L. Weekly 2383

Elvin VEGA, Appellant, v. STATE of Florida, Appellee.

No. 86-116.

District Court of Appeal of Florida Fifth District.

Nov. 13, 1986.

Rehearing Denied Dec. 22, 1986.

James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

Elvin Vega was charged with one count of robbery of less than $100, and one count of battery. Vega ultimately pled guilty to robbery without a weapon. A sentencing guideline score sheet showed a total of 57 points, with a recommended sentence of 12 to 30 months' incarceration or community control. The trial court determined not to follow the score sheet but, rather, to sentence the defendant as a youthful offender. Accordingly, the court imposed a sentence of four years' imprisonment, followed by two years of community control. Vega appeals the sentence.

He initially contends that the court's disregard of the score sheet is the same as if no score sheet was prepared. This point is without merit. It is clear from the transcript of the sentencing hearing that the trial judge had the score sheet before him in the instant case, but chose to ignore it because he felt the guidelines were inapplicable in sentencing a youthful offender. Cf. Gause v. State, 491 So.2d 320 (Fla. 2d DCA 1986) (wherein no score sheet was prepared or filed in the cause).

The committee note to Florida Rule of Criminal Procedure 3.701(d)11 originally provided that youthful offenders' sentences were exempt from the guidelines. However, this provision was deleted effective July 1, 1984. As noted by the supreme court, "while statutory alternatives are acknowledged, the sentencing court is required to explain the guideline departure when an alternative program is used." The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988--Sentencing Guidelines), 451 So.2d 824 (Fla.1984). Therefore, sentences imposed after July 1, 1984, are no longer exempt from the requirement of written clear and convincing reasons for departure from the sentencing guidelines. Braddock v. State, 472 So.2d 875 (Fla. 1st DCA 1985), review denied, 482 So.2d 349 (Fla.1986); see also § 958.04(3), Fla.Stat. (1985). ¹ In Hawks v State, 475 So.2d 1001 (Fla. 5th DCA 1985), this court held that the valid reasons stated by the trial court for imposing the youthful offender sentence were "per se sufficient to explain the guideline departure when an alternative program is used."

The trial court's written reasons for sentencing Vega under the Youthful Offender Act can be summarized as follows: (1) aggressive violence used in the robbery; (2) protection of the community; (3) style of life and unlikelihood of rehabilitation or deterrence with juvenile sanctions. While these reasons follow the criteria found in section 39.111(6)(c), Florida Statutes (1985), and could well support a judicial determination of adult sanctions as a youthful offender, that is not the issue in this case; the departure from the guidelines sentence is. No written reasons for departing from the guidelines are present in the record; however, if the written reasons found in the trial court's order sentencing Vega as a youthful offender prove to be clear and convincing reasons for departure as well, that is sufficient.

Reasons 2 and 3 can be dealt with easily as impermissible reasons for departure. See Wilson v. State, 490 So.2d 1360 (Fla. 5th DCA 1986) (protection of the public and guideline recommendation seen as being inadequate for rehabilitation and deterrence insufficient reasons for departure). Reason number one, victim injury, also presents what should be a simple question. However, the answer requires a mental trip through a process worthy of Rube Goldberg to determine the proper sentence which may be imposed.

Florida Rule of Criminal Procedure 3.701(d)7 provides: "Victim injury shall be scored if it is an element of any offenses at conviction." ² Several district courts have held that victim injury points should not be scored under the guidelines for the crime of robbery, since it is not an element of the crime charged. See Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985); Smith v. State, 484 So.2d 649 (Fla. 4th DCA 1986); Hendry v. State, 460 So.2d 589 (Fla. 2d DCA 1984). This court, in Benedict v. State, 475 So.2d 1000 (Fla. 5th DCA 1985), which dealt with victim injury for the offense of leaving the scene of an accident, seems to cite Hendry with approval. Since victim injuries cannot be considered in the scoring, the addition of seven points for this factor on Vega's score sheet was error. ³ Thus, the total score in the instant case drops to 50 points, placing it in the next lower cell (any nonstate prison sanction).

If victim injury is not considered in the guideline sheet calculation, it is proper to consider it as a clear and convincing reason for departure from the recommended guideline sentence. See Holloman v. State, 482 So.2d 431 (Fla. 5th DCA 1985); Parker. However, in the instant case, as part of a plea bargain agreement, the state nolle prossed the battery charge against the defendant, and reduced the robbery charge to one without a weapon....