Von Carter v. State

• Decision Date: 13 March 1985
• Docket Number: No. AW-30,AW-30
• Citation: 468 So.2d 276,10 Fla. L. Weekly 1163
• Parties: 10 Fla. L. Weekly 1163, 10 Fla. L. Weekly 664 Randy VON CARTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 276

468 So.2d 276

10 Fla. L. Weekly 1163, 10 Fla. L. Weekly 664

Randy VON CARTER, Appellant, v. STATE of Florida, Appellee.

No. AW-30.

District Court of Appeal of Florida First District.

March 13, 1985.

Rehearing Denied May 9, 1985.

David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Andrea Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Appellant was convicted of burglary of a dwelling and robbery and was sentenced to Appellant was charged with armed robbery and burglary of a dwelling while armed with a knife. Construed most favorably to the state, the evidence shows that appellant and a companion broke into the home of an eighty-six year old woman and robbed her at knife point. The victim was unable to identify appellant as a participant in the robbery, but appellant's codefendant, in exchange for a plea bargain arrangement, testified that appellant was his accomplice in the robbery. There was also testimony from a third party that appellant had admitted his participation in the robbery. Appellant maintained that he did not commit the crime and had been elsewhere when it occurred. At the outset of cross-examination of appellant, the prosecutor made the following statement: "Randy, I notice you have a nasty looking scar on your neck there...." Defense counsel immediately objected, and the jury was removed from the courtroom. The objection was sustained and the prosecutor was chastised, but defense counsel's motion for mistrial was denied. When the jurors were returned to the courtroom, they were instructed to disregard the prosecutor's remark. The jury subsequently found appellant guilty of the lesser included offenses of robbery and burglary of a dwelling.

concurrent ten-year terms. He urges reversal based upon prosecutorial misconduct and misapplication of the sentencing guidelines. We reverse.

Sentencing was originally set for September 27, 1983, but was twice delayed because of the absence of defense counsel. Finally, the public defender's office was appointed to represent defendant, and sentencing occurred October 20, 1983. At the sentencing hearing, appellant voluntarily elected to be sentenced under the guidelines. His presumptive guidelines sentence was community control or twelve to thirty months incarceration. The state requested that the court depart from the guidelines because of the nature of the crimes, the age of the victim, the appellant's long juvenile record, and the fact that appellant would not have been eligible to be sentenced under the guidelines if his attorney had not failed to appear at the originally scheduled hearing. The trial judge then sentenced appellant to concurrent ten-year terms, stating that he would prepare a written order delineating reasons for departing from the guidelines. Defense counsel objected to the departure and objected to the court's failure to state its reason for departure at the time of sentencing. The trial judge reiterated his intention to set forth his reasons in writing and to provide such order to the parties, but defense counsel indicated that she was objecting "for appellate purposes, because I'm not sure, at what point we're supposed to object...." Four days later, the trial court entered an order setting forth fourteen reasons for departure from the guidelines.

Initially, appellant argues that the trial court erred in denying his motion for mistrial because of the prosecutor's reference to the scar on appellant's neck. He alleges that this insinuation of bad character by the prosecutor was highly prejudicial and was not properly cured by instructing the jury to disregard the comment. We agree that such comment was patently improper and had absolutely no relevance to the issues in the case. Its sole purpose was to insinuate that appellant has a criminal character or has engaged in violent or criminal conduct. It is axiomatic that unless a defendant places his character in issue it may not be attacked by the state. § 90.404(1)(a), Fla.Stat. In Briggs v. State, 455 So.2d 519 (Fla. 1st DCA 1984), this court expressed its extreme displeasure with prosecutorial tactics designed to achieve convictions at the price of a fair trial. We quote from Briggs:

[M]any criminal appeals have been filed legitimately complaining of misconduct by the prosecuting attorney during trial. The conduct complained of in this case, as is true in most of the cases appealed on similar grounds, evidences an excessive preoccupation with obtaining a conviction at any cost. Such preoccupation disregards the prosecutor's duty in representing Id. at 521 (emphasis supplied).

the people of the state of Florida to see that justice is done because OBTAINING A CONVICTION AT THE EXPENSE OF A FAIR TRIAL IS NOT JUSTICE.

The conviction in Briggs was affirmed upon application of the harmless error doctrine. With a deep sense of reluctance, we must also affirm the conviction in the present case. The prosecutor's senseless comment was obviously designed to insinuate that appellant was a violent man who had been involved in one or more knife fights. Because the evidence of appellant's use of a knife during the robbery was weak, the prosecutor stooped to insinuation and innuendo. The jury, however, apparently disregarded the prosecutor's comment since it convicted appellant only of robbery and burglary of a dwelling. We find that the evidence was clearly sufficient to support the convictions.

Appellant's second argument is that the trial court denied him due process of law when it departed from the sentencing guidelines without notifying him of the reasons for such departure and allowing him to rebut such reasons. In response, the state points out that there is no requirement in the rules that the trial judge explain at the sentencing his reasons for departing from the guidelines.

Appellant does not suggest that he was deprived of an opportunity to present to the court evidence of mitigating circumstances or reasons for the court to sentence within the guidelines; he argues only that he was not given a chance to rebut the court's decision after it had been made. We know of no requirement that the trial court inform the defendant of its reasons for departure at the sentencing hearing. Rule 3.701(d)(11), Florida Rules of Criminal Procedure, requires only that a written statement setting forth the reasons for departure accompany the judgment and sentence. The trial court properly complied with this rule; therefore, we reject appellant's argument.

The final argument made by appellant is that the trial court erred in failing to set forth clear and convincing reasons for departing from the guidelines. We agree that the trial court has not sufficiently justified its departure. Although the court set forth fourteen reasons for departure from the guidelines, we construe the court's order as setting forth seven basic reasons for departure. We find two of the court's reasons to be proper, one to be partially proper, and the remainder to be improper.

The two proper factors cited by the trial court were (1) the victim was an eighty-six year old female who lived alone, and (2) the manner in which the crime was carried out indicated premeditation. With respect to the premeditation factor, we find there is competent evidence in the record to support that factor.

Another factor cited by the court was the defendant's juvenile and adult records from 1972 to October 1983. As recognized by the Second District in Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984) a defendant's juvenile adjudications which are more than three years old can properly be considered a factor in deviating from the sentencing guidelines. The fact that such juvenile dispositions...