Opinion
No. 4-86-0166.
January 28, 1987.
Appeal from the Circuit Court, Broward County, J. Leonard Fleet, J.
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Eddie J. Bell, Asst. Atty. Gen., West Palm Beach, for appellee.
Pleading guilty to second degree murder, defendant was sentenced, in aggravation of the guidelines, to life in prison.
The defendant was sitting in the front seat of an automobile next to his wife when he shot the victim, who was seated in the rear. The defendant then left the vehicle and shot the victim again. It is undisputed that the basis for aggravating the sentence was the risk of harm to the defendant's wife or unknown others. There is no direct evidence that the passenger, or any one else, was ever at or near the line of fire, or otherwise endangered by the method of firing. We recognize that there may be other circumstances in which endangerment of a co-passenger might warrant aggravation of a sentence. Absent speculation, the proof here was insufficient to meet the standard. See Scurry v. State, 489 So.2d 25 (Fla. 1986); State v. Mischler, 488 So.2d 523, 525 (Fla. 1986).
We therefore vacate the sentence and remand for resentencing.
DELL and WALDEN, JJ., concur.