
    Marcus WELCH a/k/a Demetrius Jackson, Appellant, v. STATE of Florida, Appellee.
    No. 93-1462.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1994.
    
      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Patricia Ann Ash, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant, Marcus Welch, a/k/a Demetrius Jackson, appeals his judgment and sentence for aggravated battery with a deadly weapon and assault. We affirm the judgment but reverse the sentence because the trial court improperly departed from the sentencing guidelines because of risk of harm to a bystander.

This case arose out of the robbery of a car from two victims, Lisa Richardson and Theresa Richardson, her mother. During the course of the robbery, Defendant pointed a gun at both Lisa and Theresa. Defendant was charged with robbery of Lisa with a firearm, aggravated battery of Lisa with a firearm, and aggravated assault of Theresa with a firearm. The jury acquitted Defendant of robbery and convicted him of the lesser offenses of aggravated battery with a deadly weapon and assault. Thus, Theresa was the victim of the assault.

Defendant’s recommended guidelines sentence was 12 to 30 months, with a permitted sentence of 3% years. Over defense objection, the trial court found that Defendant’s crime created a great risk of harm to “not only the immediate victim, but also the mother, the other bystander.... ” Accordingly, the trial court departed from the guidelines and sentenced Defendant to 4/é years in prison on each of the two convictions, to run concurrently.

Creating a great risk of harm to innocent bystanders and multiple victims is a valid reason for departure from the sentencing guidelines as long as the fact that Defendant endangered the lives of others is proven beyond a reasonable doubt. Whitfield v. State, 515 So.2d 360, 361 (Fla. 4th DCA 1987). Defendant does not argue that the risk of harm to others was not proven beyond a reasonable doubt. Rather, he argues that risk of harm to Theresa should not constitute a reason for departure where Theresa was a victim of the crime.

In Whitfield, this court held that risk of harm to others is normally a valid reason for departure, but reasoned that the record did not support the fact that there were other people in the vicinity of the crime other than the victims. Therefore, the Whitfield court held that risk of harm to bystanders was an invalid reason for departure because it was not proven beyond a reasonable doubt. 515 So.2d at 361. Similarly, in the instant ease, the record reflects that no one other than the victims was in the vicinity at the time of the crime. Accordingly, the trial court erred in departing from the sentencing guidelines based on risk of harm to bystanders.

The trial court cannot use an inherent component of the crime to justify departure. State v. Mischler, 488 So.2d 523, 525 (Fla.1986), superseded by statute on other grounds as stated in Felts v. State, 637 So.2d 996 (Fla. 1st DCA 1988); Hannah v. State, 480 So.2d 718, 720 (Fla. 4th DCA 1986). Because Theresa was the assault victim, the risk of harm to her was already factored into the recommended range of punishment for assault. Accordingly, potential harm to Theresa could not be used to support a departure from the sentencing guidelines. See Whitaker v. State, 552 So.2d 306 (Fla. 5th DCA 1989) (statutory prohibition against discharging firearm in public takes risk of harm to third persons into account); Crosby v. State, 518 So.2d 477 (Fla. 5th DCA 1988) (armed robber’s alleged disregard for safety of others was not valid reason for departure sentence where no persons were involved in crime other than defendant and the two victims).

Departure is not allowed for factors relating to the instant offense for which a defendant is not convicted. Fla.R.Crim.P. 3.701(d)(ll); Pennant v. State, 600 So.2d 526 (Fla. 2d DCA 1992); Brown v. State, 587 So.2d 563, 565-66 (Fla. 1st DCA 1991) upward departure for disregarding safety of innocent bystanders by pointing gun at bank patrons was invalid where defendant was acquitted on charges involving use of firearm). Accordingly, departure cannot be justified for Defendant’s use of a firearm where the jury did not convict him of the aggravated assault with a firearm charge. Therefore, the trial court erred in departing from the sentencing guidelines because of the risk of harm to bystanders created by Defendant’s use of a firearm.

Because the trial court’s only reason for departing from the sentencing guidelines is invalid, we vacate Defendant’s departure sentence and remand for resentencing within the sentencing guidelines. See Shull v. Dugger, 515 So.2d 748 (Fla.1987).

SENTENCE VACATED; REMANDED.

GUNTHER and STEVENSON, JJ., concur.

PARIENTE, J., concurs in part and dissents in part with opinion.

PARIENTE, Judge,

concurring in part; dissenting in part.

I concur in the majority’s opinion concerning the error in sentencing. However, I would reverse the defendant’s conviction and remand for a new trial based on the impermissible comment by a police officer on the defendant’s exercise of his right to silence.

In response to questioning by the state, the police officer testified about his actions after the victims identified the defendant as the assailant:

I approached him and advised him that I was there investigating an incident that occurred. He then advised me that he didn’t know anything about an incident. He spontaneously advised me that he didn’t know anything about some lady or whatever. I had not gotten to that point or anything. And at that time he also, I’ve [sic] believe, told me he wasn’t going to say anything. (Emphasis supplied).

Defense counsel objected and moved for a mistrial on the ground that the police officer’s testimony was an improper comment on the defendant’s right to remain silent.

Unquestionably, the police officer’s testimony amounted to an impermissible comment on the defendant’s silence and his constitutional right to remain silent. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). See Graham v. State, 573 So.2d 166 (Fla. 4th DCA 1991); Hicks v. State, 590 So.2d 498 (Fla. 3d DCA 1991). The remarks by the police officer were unwarranted and improper. A law enforcement official, by virtue of his training, should know better. Such comments potentially undermine a defendant’s constitutional right to a fair trial. One can only wonder why such a comment is made if evidence of guilt is otherwise overwhelming.

On appellate review, the question is whether the state has proved beyond a reasonable doubt that the comment did not contribute to the guilty verdict. DiGuilio, 491 So.2d at 1137-39. The harmless error rule enunciated in DiGuilio places a “heavy burden” on the state. Id. at 1136. The supreme court explicitly recognized that comments on a defendant’s silence have a substantial likelihood of affecting a verdict, terming such comments “high risk errors”:

It is clear that comments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict....

Id.

DiGuilio cautions appellate courts to strictly apply the harmless error test and not fall into various “common errors” when applying the analysis:

The worst is to abdicate judicial responsibility by falling into one of the extremes of all too easy affirmance or all too easy reversal. Neither course is acceptable. The test must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review. The test is not a sujficiency-of-the-evidence, a correct resitlt, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is the effect of the error on the trier-of-fact.

Id. at 1139 (emphasis added).

DiGuilio offers an example of a hypothetical harmless error situation where the defendant confesses his guilt on the stand. In this case, the defendant did not take the stand. The implications from the police officer’s comments are that the defendant had a responsibility to speak and assert his innocence. Graham. The fact that the defendant in this case did not take the stand could only compound the potential effect on the jury of the police officer’s comments. The evidence linking the defendant to the crime consisted of the identification by the mother and daughter victims. The daughter testified she was very certain of her identification. The mother basically relied on her daughter. At the time of the night-time attack, the daughter testified she was “frightened beyond belief.” The essence of the defense was that of misidentification, lack of evidence and poor police work.

The police officer in this case voluntarily, spontaneously and unequivocally commented on the defendant’s silence. Certainly, there is sufficient permissible evidence upon which the jury’s guilty verdict could be based. However, that is not the DiGuilio harmless error standard of review. The state has the burden of proving that there is no reasonable possibility that the jury’s verdict was not affected by this comment. Under the facts of this case and the principles of DiGuilio, I do not believe the state can sustain its burden. Accordingly I would reverse the defendant’s conviction and remand for a new trial free of this “high risk” error.  