Wemett v. State, 88-2889

• Decision Date: 13 July 1989
• Docket Number: No. 88-2889,88-2889
• Citation: 14 Fla. L. Weekly 1670,547 So.2d 955
• Parties: 14 Fla. L. Weekly 1670 Glen WEMETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 955

547 So.2d 955

14 Fla. L. Weekly 1670

Glen WEMETT, Appellant, v. STATE of Florida, Appellee.

No. 88-2889.

District Court of Appeal of Florida,

First District.

July 13, 1989.

Rehearings Denied Aug. 28, 1989.

Louis O. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

For the second time, appellant appeals from alleged sentencing errors. The issues presented in this appeal are: (1) the propriety of the departure reasons relied upon by the trial court for imposition of a sentence in excess of the recommended guidelines range, and (2) the propriety of the imposition of life sentences after a successful challenge to the former sentencing disposition. We affirm in part, and reverse in part.

The issue in the first appeal concerned the trial court's retention of jurisdiction for one-half of the original total sentence of 260 years, pursuant to convictions for burglary with assault, unarmed robbery, and attempted unarmed robbery. The state asked this court to relinquish jurisdiction, so that the trial court might correct the sentence to reflect retention of jurisdiction for one-third of the sentence. See § 947.16(3), Fla.Stat. (1983). The court treated the request as a confession of error, vacated the sentence, and remanded for resentencing. See Wemett v. State, 529 So.2d 1288 (Fla. 1st DCA 1988).

At resentencing, appellant argued that in accordance with this court's opinion in Harmon v. State, 531 So.2d 391 (Fla. 1st DCA 1988), he was entitled to a full resentencing hearing. Appellant further successfully asserted his right to be resentenced under the sentencing guidelines which went into effect some six months after the subject offenses were committed. See § 921.001(4)(a), Fla.Stat. (1983); Knight v. State, 455 So.2d 457 (Fla. 1st DCA 1984).

The guidelines scoresheet prepared for appellant's resentencing indicated a recommended sentence of five and one-half to seven years. After receiving extensive argument from counsel, the trial court imposed two concurrent life sentences for the two convictions for burglary of a dwelling with assault, a 15-year consecutive sentence for the robbery conviction, and a 5-year consecutive sentence for the attempted robbery conviction. The trial court's written reasons for departure were predicated upon the victim's age and extreme vulnerability, which vulnerability made it possible for appellant to terrorize and rob the victim in her home on two different occasions within a twenty-four hour period.

We note at the outset that we find the trial court's departure reasons valid and amply supported by the record in this case. This court has held that when a victim's vulnerability is increased by virtue of advanced age, frailty, or helplessness, the combination of factors which have made the victim particularly vulnerable will support a departure sentence. Bell v. State, 522 So.2d 989, 990 (Fla. 1st DCA 1988); Guzie v. State, 512 So.2d 289, 290 (Fla. 1st DCA 1987); Hadley v. State, 488 So.2d 162 (Fla. 1st DCA 1986); Von Carter v. State, 468 So.2d 276, 279 (Fla. 1st DCA 1985). Moreover, we conclude that the added factor that appellant committed separate and distinct offenses against the same victim on two consecutive days is also a valid reason for departure, in the circumstances of this case. Therefore, we reject appellant's challenge to the departure reasons relied upon by the trial court in imposing sentences in excess of the recommended guidelines range.

However, the second issue raised by appellant is somewhat more troubling of resolution. Appellant was convicted of two counts of burglary with assault, a first degree felony punishable by a term of years not exceeding life imprisonment, see §§ 810.02(2)(a) and 775.082(3)(b), Fla.Stat. (1983); unarmed robbery, a second degree felony punishable by a maximum of 15 years imprisonment, see §§ 812.13(2)(c) and 775.082(3)(c), Fla.Stat. (1983); and attempted robbery, a third degree felony punishable by a maximum of 5 years imprisonment. See §§ 777.04(4)(c) and 775.082(3)(d), Fla.Stat. (1983). At the first sentencing proceeding, the trial court imposed consecutive and concurrent sentences totalling 260 years, ¹ and retained jurisdiction for one-half of that period.

At the 1988 resentencing proceeding conducted pursuant to this court's direction in Wemett I, appellant affirmatively selected to be sentenced under the guidelines. In addition, appellant argued successfully that he was entitled to "a fullblown resentencing hearing upon vacation of the original sentence." Harmon v. State, 531 So.2d 391, 393 (Fla. 1st DCA 1988), citing Griffin v. State, 517 So.2d 669 (Fla.1987). As noted above, the trial court determined a departure sentence was indicated, and imposed two consecutive life sentences for the burglary with assault convictions, and consecutive 15-year and 5-year sentences for the unarmed robbery conviction and the attempted robbery conviction, respectively.

Where, as in the instant case, resentencing occurs as a result of a defendant's pursuit of his statutory right to be sentenced according to applicable law, the principle enunciated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), must be consulted. See Blackshear v. State, 531 So.2d 956, 958 (Fla.1988); Beech v. State, 436 So.2d 82, 83-84 (Fla.1983). In North Carolina v. Pearce, the court said:

In order to assure the absence of [a vindictive] motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.

89 S.Ct. at 2081. The court reasoned that due process requires that a defendant must be free of any apprehension of retaliation by a sentencing judge for a successful appeal. Id., at 2080.

Thus, the operative question with respect to the second issue is whether the two life sentences imposed after remand are more severe than the former consecutive sentences totalling 260 years. Under the former sentencing scheme, the trial court contemplated...