Opinion
No. BG-115.
June 18, 1986. Rehearing Denied July 25, 1986.
Appeal from the Circuit Court, Santa Rosa County, George E. Lowery, J.
R. John Westberry, Pensacola, for appellant.
Jim Smith, Atty. Gen., Lawrence Kaden, Asst. Atty. Gen., and Kurt L. Barch, Asst. Atty. Gen., for appellee.
Appellant, defendant below, was found guilty after a jury trial of second-degree murder. He now raises two arguments on appeal: (1) that the trial court erred in giving a jury instruction on the law of principals, and (2) that the trial court erred in departing from the sentencing guidelines. We find that the court was justified in giving the complained of jury instruction and, thus, we affirm the judgment. As to the second issue, however, we reverse and remand for resentencing.
The sentencing guidelines scoresheet in this case recommended a sentence of 12-17 years incarceration. The court departed and imposed a sentence of 30 years, finding that the circumstances surrounding both the instant offense and a prior 1981 burglary conviction demonstrated a "continuing propensity and pattern of violent conduct which justifies departure from the sentencing guidelines."
This does not constitute a valid reason for departure in the instant case. This court has recently held, in Smith v. State, 479 So.2d 804 (Fla. 1st DCA 1985) that a finding of a "violent pattern of conduct" cannot be used as a basis for departure where that finding is "apparently based factually on past convictions alone, without further explanation." 479 So.2d at 808. The Smith decision is based on the supreme court's holding in Hendrix v. State, 475 So.2d 1218 (Fla. 1985) that it is improper to consider a defendant's prior convictions as a basis for departure. Since the court's finding of a pattern of violent conduct is based solely on the circumstances surrounding the instant offense and the prior offense, and since both offenses are already taken into account on the sentencing guidelines scoresheet, the reason for departure is improper. Further, according to the supreme court's recent decision in State v. Mischler, 488 So.2d 523 (Fla. 1986), the reason for departure falls into one of the three categories which obligate this court to find the departure invalid.
Accordingly, the sentence is reversed and the matter remanded for resentencing.
REVERSED and REMANDED.
WIGGINTON, J., concurs.
BOOTH, C.J., concurs in part and dissents in part with opinion.
I respectfully dissent from that portion of the majority's opinion which remands for resentencing based on error in the sentencing guidelines. The reasons cited for departure from the guidelines go beyond those condemned in Smith v. State, 479 So.2d 804 (Fla. 1st DCA 1985), and Hendrix v. State, 475 So.2d 1218 (Fla. 1985). In its order, the trial court set forth facts relating to both the burglary and the murder charges, two offenses committed by the defendant and entered the following written reasons for departure:
The undersigned circuit judge presided upon that trial and heard all testimony before the Court, and this Court takes judicial notice and incorporates by reference the evidence before the Court in that cause upon the trial of 81-I-476 and finds by clear and convincing evidence the following circumstance with respect to said burglary charges:
(a) The defendant kicked open the front door and unlawfully entered the victim's home while carrying and displaying in a threatening manner to wit: a firearm, and the defendant was disarmed only after intervention by the victim's father who was himself armed to protect his daughter from the defendant.
In the instant case before the Court, 84-I-139, the defendant was tried before the undersigned circuit judge upon an indictment for First Degree Murder and found guilty by a jury of murder in the second degree on November 1, 1984.
As presiding judge the undersigned circuit judge heard all testimony before this Court and takes judicial notice and incorporates by reference the evidence before the Court in this case upon trial and this Court finds by clear and convincing evidence the following circumstances:
(a) That the defendant during the commission of the murder of the victim, Jimmy Livingston, Sr., carried, displayed and used in the commission of the crime a weapon, to wit: a Knife.
(b) The victim, Jimmy Livingston, Sr., was brutally and repeatedly stabbed in the presence of his son, Jimmy Livingston, Jr., and died as a result of the wounds inflected by the defendant.
In Case 81-mm-1674 in the County Court of Santa Rosa County, Florida, on April 1, 1982 the defendant was adjudged guilty of harassing and threatening phone calls.
The defendant is found and adjudged guilty of Violation of Probation in 81-I-476 and such probation be and is hereby revoked.
. . . .
This Court does find . . . that this Court may lawfully consider the circumstances surrounding the instant offense and the offense charged and the circumstances surrounding that offense in 81-I-476 and based upon such considerations this Court finds by clear and convincing evidence that the defendant has demonstrated a continuing propensity and pattern of violent conduct which justifies departure from the Sentencing Guidelines in accordance with the findings set forth in this Order.
Since the court's conclusion regarding "continuing propensity" and "pattern of violent conduct" is substantiated by specific matters concerning the commission of the offense, matters which are not included within the guidelines scoresheet, the reasons are sufficient and should be upheld. For example, the killing of a person in the presence of his son, as was done in this case, should be sufficient, in and of itself, to justify departure from the guidelines and imposition of the maximum sentence allowed by law. The facts, as recited by the trial court, show that the defendant had previously committed burglary also involving violence and also against a victim in the presence of an immediate member of his family. The display and use of the weapons in both the burglary and in the murder are additional aggravating factors not integral parts of either crime. I would affirm the judgment and sentence below.