TOMMY MARSHALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tommy Marshall was convicted of sexual battery and appealed his sentence. The trial court erroneously designated him a habitual offender based on insufficient out-of-state convictions and relied on impermissible sentencing factors, but one valid factor (victim terrorization) was adequate to uphold departure from guidelines.
The appellant was improperly adjudicated a habitual offender because the habitual offender statute requires two or more out-of-state convictions and only one conviction was presented. However, the sentencing departure from guidelines was upheld because victim terrorization constituted one clear and convincing valid reason for departure, even though the court's reliance on kidnapping and weapon factors violated sentencing rules.
[1] A defendant cannot be adjudicated an habitual offender based on out-of-state arrests that did not result in convictions.
[2] Reasons for deviating from sentencing guidelines cannot include factors relating to the instant offense for which convictions have not been obtained.
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Join FLexlaw to unlock all legal intelligence“two or more out-of-state convictions”
The statutory requirement for habitual offender designation that was not satisfied by the single Georgia conviction presented
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Join FLexlaw to unlock all legal intelligenceMarshall was charged with kidnapping and sexual battery with a deadly weapon. He was convicted of the lesser included offense of sexual battery withou…
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FRANK, Judge.
The appellant in this case was charged with and tried for kidnapping and sexual battery with a deadly weapon. He was convicted of the lesser included offense of sexual battery without a deadly weapon and was acquitted of kidnapping. The appellant appeals from the sentence imposed by the trial court. We reverse.
At sentencing the trial judge adjudicated the appellant an habitual offender pursuant to Section 775.084(1)(a)1.b, Florida Statutes. That statute requires, as our court has held in Coots v. State, 426 So. 2d 1304 (Fla. 2d DCA 1983), two or more out-of-state convictions. The state presented evidence of only one out-of-state conviction at the sentencing hearing — a 1979 commercial burglary in Georgia. Although the appellant also had been arrested in Georgia for burglary and sexual battery, and those arrests resulted in the revocation of his probation, he was never convicted of those crimes. Therefore, he was improperly adjudicated an habitual offender. In stating his reasons for departing from the sentencing guidelines, the trial court relied upon factors relating to the kidnapping and the use of a weapon in connection with the sexual battery. Reliance upon those factors was violative of Florida Rule of Criminal Procedure 3.701(d)(11), the Rule in effect at the time of sentencing, which stated that “[rjeasons for deviating from the guidelines shall not include factors relating to ... [the] instant offense ... for which convictions have not been obtained.”
The trial court, however, also included terrorization of the victim as a reason for departure. Psychological trauma inflicted upon the victim is a valid reason for departure. Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984). This one clear and convincing reason is sufficient to uphold the trial court’s departure from the guidelines. Webster v. State, 461 So. 2d 965 (Fla. 2d DCA 1984).
Because the trial court erroneously applied the habitual offender statute, we reverse and remand for sentencing in accordance with the guidelines. The trial court at that time however may chose to depart from the guidelines if it finds departure appropriate.
DANAHY, A.C.J., and BOARDMAN, EDWARD F. (Ret.) J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Creed Martin Vanover v. State, 498 So. 2d 899 (Fla. 1986)…t, at the very least, found the higher crime, for which there was no conviction, a significant element in the determination to depart from the presumptive sentence.” We therefore find the reason an invalid basis for departure. See Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA), review denied, 472 So. 2d 1181 (Fla.1985). We additionally find the fourth reason for departure invalid, and quash the district court on this point. Because the extent of victim injury is calculated into the guidelines score in aggra…
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Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)…551 (Fla. 1st DCA 1984) (one out of five reasons for departure proper; case remanded for resentencing), with Brinson v. State, 463 So. 2d 564 (Fla. 2d DCA 1985) (five out of seven reasons for departure proper; sentence affirmed); Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA 1985) (one out of three reasons for departure proper; sentence reversed on other grounds). As did the courts in Brinson v. State, 463 So. 2d 564, and Young v. State, 455 So. 2d 551, we certify to the Florida Supreme Court the following…
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Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985)…DCA 1984); Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984); but cf. Knowlton v. State, 466 So. 2d 278 (Fla. 4th DCA 1985). It may also be justified as taking into consideration the psychological trauma suffered by the victim. Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA 1985). Reason # 3 is improper, again, since appellant maintained his innocence throughout the trial. Hubler v. State, Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984). However, reason #4 is acceptable. Florida Rule of Criminal Pro…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984)
- Keithie's Roofing Co. Inc. v. LEE Parks Apts., Inc., 461 So. 2d 965 (Fla. 3d DCA 1984)
- Benny Lee Webster v. State, 461 So. 2d 965 (Fla. 2d DCA 1984)
- Tomasko v. State, 426 So. 2d 1304 (Fla. 2d DCA 1983)