RUBEN GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1984-09-05
No. 84-132
RYDER, C.J., and SCHEB, J., concur.
455 So. 2d 586 Florida District Court of Appeal, Second District (1984) Caution
Cited by 56 cases

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Synopsis

Ruben Green was convicted of shooting into a building and sentenced to 30 months in state prison, departing from the recommended non-prison sanction. The appellate court affirmed the sentence, holding that a sentencing judge may consider psychological trauma to the victim as a valid reason for departing from sentencing guidelines.


Holding

A sentencing judge may consider psychological trauma to the victim as a permissible reason for departure from sentencing guidelines. Such psychological injury may be considered even though it is excluded from guideline computation itself, and the judge did not abuse discretion in departing from the recommended non-prison sanction based on this factor.


Headnotes

[1] A sentencing judge may consider psychological trauma to a victim as a reason for departing from a recommended sentence, even if psychological trauma is not scored on the…

[2] Matters excluded for purposes of guideline computation may still be considered as reasons for departure from the guidelines.

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Key Quotes

“there is nothing in rule 3.701 to suggest that matters excluded for purposes of guideline computation cannot be considered as reasons for departure from the guidelines”

Establishes the principle that factors excluded from guideline scoring can still justify departure reasons

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Facts & Procedural History

On August 16, 1983, Green followed his sister-in-law Ella Mae Green to her mother's residence while she was fleeing from his threats of bodily harm. A…

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Opinion of the Court
OTT, Judge.

OTT, Judge.

Ruben Green was convicted of shooting into a building, contrary to section 790.19, Florida Statutes (1983). In this appeal, he challenges a two and one-half year sentence imposed outside the recommended sentence of “any nonstate prison sanction.” We affirm.

On the evening of August 16, 1983, defendant followed Ella Mae Green, his sister-in-law, to her mother’s residence. Ella Mae Green drove her vehicle into and across the yard, rather than the driveway, in order to get as near the entry to the residence as possible before alighting from her ear. Convinced by defendant’s earlier actions and threats that defendant intended her bodily harm, Ella Mae jumped out of the automobile, ran to the house, broke a glass pane in the door with her elbow, and opened the door from the inside in order to gain immediate entry. Once inside, she peeked out the door and observed defendant speaking with her mother. Using foul language, defendant commanded Ella Mae Green’s mother in no uncertain terms to tell Ella Mae that he was going to kill her. Ella Mae called out to defendant, “Why are you trying to hurt me? What have I done to you?” Defendant then fired two shots in her general direction. One bullet was recovered from the door frame. No one was physically injured during the incident.

However, at trial, Ella Mae Green briefly described her fear of defendant.

Defendant’s recommended sentence was “any nonstate prison sanction.” However, the sentencing judge imposed a sentence of thirty months in state prison. On the scoresheet, the judge offered the following reason for deviation from the recommended sentence:

Serious mental strain and/damages on victims occasioned by his threats in the past and threats to do damage in the future.

Departures from the presumptive sentence should be avoided by the sentencing judge unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Fla.R.Crim.P. 3.701 d. 11. These reasons shall be articulated in writing. Fla.R.Crim.P) 3.701 b. 6. Defendants are afforded appellate review of the sentencing judge’s decision to impose sentence outside the recommended sentence range. Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984). However, the appellate court’s role is limited to assuring that the sentencing judge did not commit an abuse of discretion in exercising his discretion to sentence outside the guideline range. Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984).

Defendant contends that the sentencing judge erred in considering psychological trauma as a reason for departure because the scoresheet limits scoring for victim injury to those cases involving physical trauma. See Committee Note to Fla.R. Crim.P. 3.701 d.

7. The simple answer to defendant’s point is that the sentencing judge did not use the fact of victim injury caused by psychological trauma in guideline computation, but rather used such injury as a basis for departure from the recommended sentence. As noted in Weems v. State, supra, “[tjhere is nothing in rule 3.701 to suggest that matters excluded for purposes of guideline computation cannot be considered as reasons for departure from the guidelines.” We believe an additional and even more compelling reason exists to include psychological trauma as a permissible reason for departure. In cases such as those involving sexual offenses, the real effect of the crime often cannot be fully measured without accounting for the psychological trauma occasioned upon the victim. The sentencing judge is in the best position to observe the vicious and malevolent intentions of the accused together with their marked and lasting effect on the victim. By considering psychological trauma as a reason for departure from the guidelines, the sentencing judge can ensure in appropriate cases that the penalty imposed is “commensurate with the severity of the convicted offense and the circumstances surrounding the offense.” See Fla.R. Crim.P. 3.701 b.

3. For the reasons expressed above, we reject defendant’s contention that a sentencing judge may never consider psychological trauma as a reason for departure. In the instant case, we find no abuse of discretion in the sentencing judge’s reason for departing from-the recommended sentence.

AFFIRMED.

RYDER, C.J., and SCHEB, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (28 total)

  • State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
    …actually supported, “emotional hardship” on the victim may support departure. Id. at 828. In Hankey we relied on two district court opinions, Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984), approved, 477 So. 2d 565 (Fla.1985), and Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984), both of which illustrate the distinction articulated in Casteel. For example, Davis involved a defendant convicted of, inter alia, robbery. The district court concluded that the trial court’s utilization of emotional trauma to th…
  • Hankey v. State, 485 So. 2d 827 (Fla. 1986)
    …usly not intended when the guidelines were conceived. See State v. Mischler, 488 So. 2d 523 (Fla.1986). Emotional hardship on the victim may, if the facts dictate, support departure. Davis v. State, 458 So. 2d 42 (Fla.4th DCA 1984); Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984). However, the facts supporting the reason must be credible and proven beyond a reasonable doubt. Mischler, at 525. In this instance, the only evidence that the victim suffered emotional trauma is the blanket assertions of the tri…
  • Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
    …e, 453 So. 2d 485 (Fla. 2d DCA 1984). In Mischler we discussed the third basis for aggravation, that is, great physical distress and emotional trauma and we approve it here. See Williams v. State, 454 So. 2d 790 (Fla. 5th DCA 1984); Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984); Williams v. State, 454 So. 2d 751 (Fla. 1st DCA 1984). The defense argues that armed robbery by its very definition cannot help but induce trauma. This argument troubles us, but we again reiterate that the trial judge retains the…

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