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626 So. 2d 706

Guerra v. State

District Court of Appeal of Florida

Decided October 27, 1993

District Court of Appeal of Florida · decided 1993-10-27

Cited by 1 later decisions — most recently June 1997

1 state decisions

Relies on 488 So. 2d 523 - State v. Mischler · 509 So. 2d 281 - State v. Rousseau · 605 So. 2d 856 - Power v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1993-10-27

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PARKER, Judge.

¶1We affirm Maria Guerra’s conviction for murder in the second degree with a weapon, concluding that the giving of the flight instruction was harmless error. See Power v. State, 605 So.2d 856 (Fla.1992). However, sentencing errors require that we remand this case to the trial court for resentencing.

¶2Guerra contends that the trial court erred in imposing a departure sentence based on excessive physical trauma. She argues that excessive physical trauma is an invalid departure reason under the facts of this case. In State v. Mischler, 488 So.2d 523 (Fla.1986), the supreme court held that the court cannot base departure on an inherent component of the crime. In Mischler, the court dealt with the crime of grand theft, specifically embezzlement. Subsequently, the supreme court clarified its reasoning, in State v. Rousseau, 509 So.2d 281 (Fla.1987), by holding that the trial court cannot justify departure on trauma resulting from a crime when it is the same trauma suffered by all victims of that particular crime.

¶3In the instant case, death is the ultimate trauma suffered by all second-degree murder victims. The events of the victim’s death, while unfortunate, were not extraordinary in that the victim died from one quick stab to the heart. Accordingly, we are compelled to remand for resentencing within the guidelines.

DANAHY, A.C.J., and BLUE, J., concur.
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