Simmons v. StateSimmons v. State
Robert A. Butterworth, Atty. Gen., Tallahassee and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.
PETERSON, Judge.
Irvin Simmons appeals the departure sentence imposed upon him after entering a plea of nolo contendere to burglary of a dwelling, aggravated battery, and use of a firearm in the commission of a felony.
Simmons’ history of convictions is as follows:
| Date | Illegal Activity | Disposition |
|---|---|---|
| March 28, 1984 | Battery: Simmons held the victim while co-defendant struck victim repeatedly with a broomstick. | Committed to juvenile arbitration program. |
| October 5, 1984 | Criminal mischief and throwing deadly missile: Simmons threw concrete into a vehicle, striking its occupant and requiring stitches on the victim‘s right temple. | Adjudicated delinquent and placed on community control. |
| August 10, 1985 | Retail theft and violation of community control: A store sensor alerted, and Simmons was found shoplifting a pair of shorts valued at $28. | Adjudicated delinquent and placed on community control. |
| November 6, 1985 | Battery, disorderly conduct, culpable negligence by exposing another to personal injury: Simmons pushed victim into street after striking her in chest with both hands and knocking her down. | Adjudicated delinquent and committed. |
| Criminal mischief: Simmons inflicted $200 in damages to a police car after his arrest for a traffic violation. | Adjudicated delinquent and placed on community control. | |
| April 14, 1988 | Burglary of a dwelling, aggravated battery, and use of firearm in commission of felony. | (Instant Case) |
On April 14, 1988, Simmons entered a residence by removing a screen from a bedroom window. The residence had the appearance of being occupied and in fact was occupied. Initially avoiding discovery, Simmons took the occupant‘s wallet but, upon opening the bedroom door, confronted the victim who was standing behind it. Simmons stepped back, raised the .38-caliber handgun he was carrying, and fired three or four times. The victim was struck twice in the right forearm and once in the left shoulder. Simmons then ran out of the residence, joined a co-defendant waiting for him in a getaway car, and stated, “I shot that motherfucker.” A witness gave a description of the vehicle to the police, and Simmons was subsequently stopped and arrested later that day.
The trial court gave five reasons for the departure:
- The victim‘s scarring and disfigurement;
- Timing, in that Simmons was on community control at the time of commission of the offense;
- Circumstances surrounding the aggravated battery so egregious and serious as to require a departure sentence (The trial court also recited the facts of the crime.);
- Failure of past rehabilitation and improbability of future rehabilitation;
- Simmons’ continuing and persistent pattern of criminal conduct.
Reasons one, two, and four are invalid. Lambert v. State, 545 So. 2d 838, 842 (Fla. 1989) (“Factors related to violation of probation and community control cannot be used as grounds for departure.“); Hall v. State, 517 So. 2d 692 (Fla. 1988) (Victim injury is not a valid reason for departure because it is already factored into score sheet.); Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990); Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989) (Failure of rehabilitation is not a valid reason.).
Reason number three is valid under Vanover v. State, 498 So. 2d 899 (Fla. 1986). In Vanover, the defendant testified that the two alleged victims were brothers who were intimidating him and attempting to force him to leave his home so they could steal $1,300 contained in the home. The defendant brandished his gun to frighten the brothers into leaving, but the first brother said: “Old man, if you got enough nerve to pull that trigger, shoot me in my mouth because if you don‘t shoot me, I‘m going to take it away from you and shoot you.” Id. at 900. The defendant accepted the invitation and shot him. The second brother was then shot when he allegedly jumped toward the defendant. Neither of the brothers died from the wounds. A jury found the defendant not guilty of aggravated battery as to the first brother but guilty as to the second brother. The supreme court upheld the subsequently imposed departure sentence, stating as follows: “This was a particularly aggravated set of circumstances which sets this case far and above the average Aggravated Battery.” Id. at 901. Although the court held the reason valid, it faulted the sentencing court for not setting out the factual basis
Finally, we agree with the trial court‘s fifth reason for imposing a departure sentence. The facts pertaining to Simmons’ prior record, together with the commission of the instant offenses, show a continuing, persistent, and escalating pattern of criminal conduct or behavior. Keys v. State, 500 So. 2d 134 (Fla. 1986).1 The schedule of offenses shows that Simmons has persistently violated the property rights and well-being of others and that the level of his violent crimes has risen with the present offense in which he shot the victim three times while committing a second-degree felony.
AFFIRMED.
COBB and GOSHORN, JJ., concur.