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Gill v. State9/24/2004
Clifton Gill appeals an upward departure sentence imposed under the 1994 sentencing guidelines in a Heggs [FN1] resentencing proceeding. The State cross-appeals the sentence. Both Gill and the State challenge the trial court's determination concerning the offense severity level on Gill's guidelines scoresheet. Gill also contends that the departure was imposed for an improper reason and was unsupported by the facts. We conclude that both Gill's challenge to the upward departure and the State's challenge to the determination concerning offense severity level have merit. We remand for resentencing with a corrected scoresheet to a guidelines sentence.
Gill was convicted of offenses including first-degree felony DUI manslaughter with failure to give information and render aid in violation of section 316.193(3)(c)(3)(b), Florida Statutes (Supp.1996). Gill's offenses were committed on April 30, 1997. He was initially sentenced under the 1995 guidelines for the DUI manslaughter offense to a term of fourteen years in prison followed by five years of probation. He successfully sought postconviction relief under Heggs. In the resentencing proceeding giving rise to the sentence now under review, Gill's Florida Rule of Criminal Procedure 3.990(a) sentencing guidelines scoresheet reflects an offense severity level of 8 for the DUI manslaughter offense, total sentence points of 140.2, and a maximum state prison sanction of 140.25 months (11.68 years).
The Unjustified Upward Departure
The sentencing court imposed an upward departure sentence of thirteen years in state prison, followed by five years on probation. In its written reasons for departure filed pursuant to section 921.001(6), Florida Statutes (1993), the sentencing court based the departure on its determination that Gill "exhibited a flagrant disregard for the safety of others," supported by two findings of fact: "1. The volume of alcohol in the defendant's system was nearly three times the legal limit. 2. This crime occurred on one of the busiest roadways in Manatee County during the evening hours on Wednesday [,] April 30th, 1997."
The State concedes that "there was no evidence presented that the intersection was under heavy traffic conditions at the time of the accident." The State further concedes that the "extent of intoxication standing alone is not a valid reason to depart because it is already an element of the offense." See Deatrich v. State, 534 So.2d 903 (Fla. 2d DCA 1988); cf. Manis v. State, 528 So.2d 1342, 1343 (Fla. 2d DCA 1988) (holding that defendant's "actions in driving his vehicle on a busy street in a highly intoxicated condition to the extent that many people, in addition to the two who died as a result of his actions, were placed in extreme jeopardy of serious bodily injury" was a proper basis for departure sentence). Accordingly, the State correctly acknowledges that "the trial court's reasons for departing upward from the 1994 guidelines were invalid."
The Offense Severity Level Scoresheet Error
*2 Both the State and Gill argue that the trial court incorrectly determined that Gill's offense was a level 8 offense. Gill contends that level 7 was the proper offense severity level, while the State asserts that level 9 was the appropriate level. We are thus confronted with three different theories of how the offense severity level for violation of section 316.193(3)(c)(3)(b) should be determined. The resolution of this question turns on the effect of the provision of section 921.0012(3)(i), Florida Statutes (Supp.1996), establishing the offense severity level for violations of section 316.193(3)(c)(3)(b). The different theories concerning the resolution of this question stem from the circumstance that Gill's offense was committed and section 316.193(3)(
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