Not overruled or negatively treated on appealinfoCoverage
District Court of Appeal of Florida, Fourth DistrictMay 14, 1986
487 So. 2d 350 (Fla. Dist. Ct. App. 1986)

Cases citing this case

How cited

  • Johnson v. State

    …A victim's age may be a valid consideration in departing. See Ball v. State, 487 So.2d 350 (Fla. 4th DCA),…

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No. 85-259.

April 9, 1986. Rehearing Denied May 14, 1986.

Appeal from the Circuit Court for Broward County; Thomas M. Coker, Jr., Judge.

Richard L. Jorandby, Public Defender, Jeffrey L. Anderson, Asst. Public Defender, and Kevin Warmbrandt, Legal Asst., West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Eddie J. Bell, Asst. Atty. Gen., West Palm Beach, for appellee.

We affirm appellant's conviction on the authority of Jones v. State, 332 So.2d 615 (Fla. 1976).

The trial court stated eight reasons for departing from the recommended guidelines sentence. We find no support in the record for the trial court's conclusion that the victims sustained substantial psychological or emotional trauma, that appellant induced others to participate in the commission of the crime, or occupied a position of leadership or dominance over the other participants, nor do we find an evidentiary basis for departure based on lack of remorse. Premeditation and the fact that appellant received compensation from the crime constitute factors embodied in the offense and therefore do not constitute valid reasons for departure. Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984).

Three of the reasons stated by the trial court may support its departure from the guidelines: the victims' vulnerability due to age, Carter v. State, 482 So.2d 533 (Fla. 1st DCA 1985), the deterrence to others, Williams v. State, 454 So.2d 751 (Fla. 1st DCA 1984), and the threat which appellant may constitute to society, Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984). The State has failed to demonstrate beyond a reasonable doubt that the absence of the invalid reasons would not have affected the trial court's departure from the guidelines sentence. Therefore, we reverse the sentence and remand this case for resentencing within the guidelines or on grounds acceptable for departure. See Albritton v. State, 476 So.2d 158 (Fla. 1985).


DOWNEY, J., and RIVKIND, Leonard, Associate Judge, concur.