Gilmore v. State
Docket: No. 2D10-713
Court: District Court of Appeal of Florida; July 8, 2011; Florida; State Appellate Court
Terry Gilmore's appeal follows his re-sentencing to life in prison for five armed robbery convictions, originally sentenced in 1984. The appellate court reversed the re-sentencing and remanded the case for the trial court to resentence Gilmore according to the 1988 sentencing guidelines using a corrected scoresheet. On December 11, 1984, Gilmore and his co-defendant were found guilty of armed robbery, resulting in life sentences upheld by the court in 1986. In 2008, Gilmore sought to correct what he claimed was an illegal sentence, which led to a resentencing in 2010, where he was again given a life sentence, based on the original judge's findings, including 21 victim injury points. Gilmore argued that the trial court abused its discretion in imposing the same upward departure sentence, asserting that the reasons for departure were not admitted by him or found by a jury, thereby violating the principles established in Apprendi v. New Jersey and Blakely v. Washington. He contended that the departure reasons were invalid, and pointed out that the sentencing guidelines at the time of his offense required that victim injury be an element of the crime to score victim injury points. The State conceded that the case should be reversed but suggested a harmless error analysis. It acknowledged that Apprendi and Blakely were relevant and recognized that most grounds for departure were invalid, except for one potential valid reason related to excessive force during the robbery. However, the court noted that excessive force was not cited as a ground for departure in this case. Since the original sentencing judge's basis for the departure was improper, the court found that a harmless error analysis was not applicable, and the victim injury points on the scoresheet were also invalid, as the record did not demonstrate any victim injuries. The court concluded that Gilmore's resentencing should follow the 1983 guidelines with a corrected scoresheet, resulting in the reversal and remand for resentencing.