Baker v. StateBaker v. State
The day began when Baker dropped the paint cans and ran because some store employees interrupted his unlawful asportation of ten gallons of paint. When Baker was caught by a uniformed police officer acting in the line of duty, he wrestled the officer to the ground, picked up the offiсer‘s gun, shot the officer, and fled with the officer‘s gun. The day ended with Baker,
Baker pleaded guilty to all the charges. The recommended sentence under the sentencing guidelines was twelve tо seventeen years in prison.1 When the trial court imposed a sentence of thirty-four years, Baker appealed.
Baker contends that the reasons given by the trial court for departing from the sentence recommended under the guidelines do not justify the deрarture. The trial court‘s stated reasons for departure were five in number:
1. The act was done in a willful, aggressive and premeditated manner.
2. The act was done during the commission of a theft and burglary.
3. The act was committed for pecuniary gain.
4. The victim did not provoke the defendant‘s actions.
5. The victim was a uniformed police officer.
It is well established that an inherent component of the crime, being аlready built into the guideline range, will not justify a guideline departure. See Bowdoin v. State, 464 So.2d 596 (Fla. 4th DCA 1985) (use of gun inherent component of robbery with a deadly weapon); Carney v. State, 458 Sо.2d 13 (Fla. 1st DCA 1984) (premeditation, calculation, objective of pecuniary gain, and lack of provocation inherent components of armed robbery). Thus, that the act of attempted first-degree murder was unprovoked and done in a “willful, aggressive, and premеditated manner,” common ingredients of all attempted first-degree murders, are not proper reasons for departure.
Likewisе, that the act (referring to the act of attempted first-degree murder, that is, the primary offense) was committed “for pecuniary gаin” and “done during the commission of a theft or burglary” are not justifiable reasons for departing from the guidelines. The burglary and theft were, as wе have noted, see n. 1 supra, additional offenses at conviction for which points were already assessed against the defendant. Were thеse, or any, underlying or additional offenses again used to support guideline departure, then departure would be justified in any instance where multiple offenses are charged. Otherwise stated, the fact that the additional offenses were committed along with the рrimary offense is, as the guidelines already state, a reason to increase the score on the defendant‘s guideline scorеsheet, but not a reason to aggravate the defendant‘s sentence outside of the guidelines.
We come now to the trial court‘s statement that the victim was a uniformed police officer. While we have found no Florida case directly holding that this reason сan justify a sentence in excess of the recommended guidelines, the fact that a law enforcement officer is the victim of thе crime has been held to justify the crime being elevated to a higher degree, see, e.g., Ex parte Murry, 455 So.2d 72 (Ala. 1984) (murder of police officer capital offеnse), and affords a rational basis for the reclassification of a crime to a higher offense, see, e.g., Street v. State, 383 So.2d 900 (Fla. 1980) (
There thus appears to be little question that “[t]here is a special interest in affording protection to ... public servants who regularly must risk their lives in order to guard the safety of other persons and property.” Roberts v. Louisiana, 431 U.S. 633, 636, 97 S.Ct. 1993, 1995, 52 L.Ed.2d 637, 641 (1977). Since, as can be seen, the protection of police officers is a valid societal objective which justifies legislation making police officers a special class of crime victim, we see no reasоn why a court may not validly pronounce as a reason for departing from sentencing guidelines that a defendant who chooses to make a police officer acting in the line of duty the victim of his crime is to be treated differently than a defendant who commits the same crime upon an ordinary citizen. Cf. Smith v. State, 682 P.2d 1125 (Alaska Ct. App. 1984) (where statute specified as aggravating factor justifying non-presumptive sentence that the defendant knowingly directed the conduct constituting the offense at, among others, a law enforcement officer, sentence in excess of presumptive sentence upheld).
However, because we find that only one of the five reasons given by the trial court justifies a departure from the sentencing guidelines and because we are uncertain how much weight the trial court placed on the four impermissible reasons, we believe it appropriate to remand the case for resentencing. Compare Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984) (onе out of five reasons for departure proper; case remanded for resentencing), with Brinson v. State, 463 So.2d 564 (Fla. 2d DCA 1985) (five out of seven reasоns for departure proper; sentence affirmed); Marshall v. State, 468 So.2d 255 (Fla. 2d DCA 1985) (one out of three reasons for departure proper; sеntence reversed on other grounds). As did the courts in Brinson v. State, 463 So.2d 564, and Young v. State, 455 So.2d 551, we certify to the Florida Supreme Court the following question of great public importance:
WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO DETERMINE IF THOSE REASONS JUSTIFY A DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENCING?
Remanded for resentencing.