Mathis v. StateMathis v. State
We have for review Mathis v. State, 498 So.2d 647 (Fla. 1st DCA 1986), in which the district court certified the following question of great public importance:
DOES A TRIAL COURT‘S STATEMENT, MADE AT THE TIME OF DEPARTURE FROM THE SENTENCING GUIDELINES, THAT IT WOULD DEPART FOR ANY ONE OF THE REASONS GIVEN, REGARDLESS OF WHETHER BOTH VALID AND INVALID REASONS ARE FOUND ON REVIEW, SATISFY THE STANDARD SET FORTH IN ALBRITTON v. STATE?
Id. at 649. We have jurisdiction.
Mathis robbed three Jаcksonville convenience stores between 7:30 and 8:45 p.m. on January 7, 1985, while under the influence оf cocaine, heroin, alcohol, and quaaludes. He pleaded guilty to three counts еach of armed robbery, aggravated assault, and use of a firearm during commission of a felоny. The trial court exceeded the recommended guidelines range of seven to nine years and imposed an eighteen-year sentence. The district court affirmed, finding
Petitioner argues that none of the reasons the trial court set forth are “clear and convincing” reasons to depart from the recommended guidelines sentence in this case. We agree. Neither reasons prohibited by the guidelines themselves, nor factоrs already taken into account in calculating the guidelines score, nor an inherent cоmponent of the crime in question can justify departure. State v. Mischler, 488 So.2d 523, 526 (Fla. 1986).
The first reason, that the crimes constituted a “crime binge,” does not constitute a clear and convincing ground for departure. See State v. Rousseau, 509 So.2d 281 (Fla. 1987). Each robbery was scored in determining Mathis’ guidelines sentence; thus, this factor has already been takеn into account by the guidelines. There are no additional facts about the timing of the robberiеs that would justify departure. Rousseau, 509 So.2d at 283.
The second reason, excessive use and threat of force, is not a valid reason for departure when the force used results in victim injury and the extent of injury alreаdy has been calculated in the guidelines. VanTassell v. State, 512 So.2d 181 (Fla. 1987); Vanover v. State, 498 So.2d 899 (Fla. 1986). In this case, however, there was no physical injury to аny of the victims2 nor do the facts support a finding of excessive use or threat of force. Petitioner‘s actions in pointing a gun at the victims and threatening to “blow [them] away” did not go beyond that degree of force or threat of force inherent in the crime of armed robbery.
The third reason, that the victims were female and working alone at night, is invalid because the victims’ defenselessness is common to nearly any armed robbery. Nor is the gender of the victim, in and of itself, an apрropriate reason for departure.
The last reason, unreasonable risk to the safety of others, has been upheld as a valid reason for departure. Scurry v. State, 489 So.2d 25, 29 (Fla. 1986); Webster v. State, 500 So.2d 285 (Fla. 1st DCA 1986). Unreasonable risk to the safety of others, however, is simply not borne out by the record in this case. The “facts” suppоrting this reason, as set out by the trial judge, were “the possibility that Ms. Clark‘s niece or an innocent customer could have been in one of the three stores between 7:30 and 9:00 p.m.” In fact, no customеrs were present or threatened by Mathis during the robberies; this reason thus cannot be used to supрort a departure in this case.
In conclusion, none of the reasons upheld by the district court are valid. Accordingly, we quash the decision below and direct
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH, SHAW, GRIMES and KOGAN, JJ., concur.