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516 So. 2d 107

Docket No. 87-0926.

Byrd v. State

Frank BYRD, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided December 9, 1987.

District Court of Appeal of Florida · decided 1987-12-09

Key passage — most relied on by later courts

“[n]either advanced age alone, ... nor the victim's helplessness or vulnerability to criminal activity, ... are sufficient as clear and convincing reasons for an upward departure from the guidelines sentences.”

quoted by 1 later decision, including 664 So. 2d 1118 - Taccariello v. State

“Neither advanced age alone, nor the victim's helplessness or vulnerability to criminal activity are sufficient as clear and convincing reasons for upward departure from the sentencing guidelines.”

quoted by 1 later decision, including 567 So. 2d 882 - Wemett v. State

Relies on 476 So. 2d 671 - Marquez v. State · 492 So. 2d 1308 - Williams v. State · 468 So. 2d 276 - Von Carter v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1987-12-09

How this case has been cited

Cited by 9 later decisions — most recently April 2001

9 state decisions

40198719902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*108 Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.

¶2Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Diane E. Leeds, Asst. Atty. Gen., West Palm Beach, for appellee.

¶3PER CURIAM.

¶4We reverse the order sentencing appellant outside the guidelines. On remand from this court's first consideration of this case in Byrd v. State,503 So.2d 434 (Fla. 4th DCA 1987), the trial court justified upward departure on the fact that "[t]he offense committed by this Defendant was extremely heinous in that the victim in this case was an eighty-six (86) year old, frail, blind person."

¶5Neither advanced age alone, Knowlton v. State,466 So.2d 278, 280 (Fla. 4th DCA), rev. denied,476 So.2d 675 (Fla. 1985), nor the victim's helplessness or vulnerability to criminal activity, Williams v. State,492 So.2d 1308 (Fla. 1986), are sufficient as clear and convincing reasons for an upward departure from the guidelines sentences. But cf. Von Carter v. State,468 So.2d 276 (Fla. 1st DCA) (fact that victim was 86-year-old female who lived alone was valid reason for departure), remanded on other grounds,478 So.2d 1071 (Fla. 1985).

¶6In our view, there must be some additional element to justify departure such as the fact that the defendant stood in a position of trust with the victim, Stewart v. State,489 So.2d 176 (Fla. 1st DCA 1986), or that the degree of suffering from physical or psychological injury was increased by reason of the advanced age, frailty or helplessness. Knowlton,466 So.2d at 280.

¶7Accordingly, the sentence is reversed and this cause is remanded for resentencing within the guidelines.

¶8REVERSED AND REMANDED.

¶9HERSEY, C.J., and ANSTEAD and DELL, JJ., concur.

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