McPherson
v.
State

District Court of Appeal of Florida, First DistrictDec 3, 1986
505 So. 2d 5 (Fla. Dist. Ct. App. 1986)

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  • Williams v. State

    …The third departure reason, the victim's vulnerability, can be a valid basis for departure, in appropriate…

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No. BI-88.

December 3, 1986.

Appeal from the Circuit Court, Escambia County, Joseph Q. Tarbuck, J.

Michael E. Allen, Public Defender, and Terry P. Lewis, Special Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Patricia Conners, Asst. Atty. Gen., Tallahassee, for appellee.


Donnell McPherson appeals his conviction and sentence for aggravated battery and robbery. We find no error in the trial of his case and affirm the conviction. However, the trial judge departed from the guidelines recommended sentence for both valid and invalid reasons, and we reverse for resentencing.

The guidelines range was 30 months to 3 1/2 years which the trial judge incorrectly stated in his reasons for departure as twelve to thirty months. The judge sentenced McPherson to concurrent terms of six years on each count. In support of the departure the trial judge prepared a lengthy narrative containing considerations which are improper for departure as well as a central theme of excessive force against a particularly vulnerable victim which is a valid reason. Morales v. State, 471 So.2d 625 (Fla. 2d DCA 1985); Moore v. State, 468 So.2d 1081 (Fla. 3d DCA 1985).

We are not able to evaluate this singular valid reason against the total content of the judge's writing in support of departure and say that the judge would have departed for this one reason independent of his other considerations. We are also concerned about an apparent inconsistency between the scoresheet assessment of moderate victim injury and the judge's description of a severe beating. This concern can be addressed by the trial judge at the time of sentencing.

AFFIRMED in part, REVERSED and REMANDED.

ERVIN and WIGGINTON, JJ., concur.