JORGE OCHOA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Ochoa challenges his 40-year sentence for kidnapping with a firearm and armed robbery, contending the trial court improperly departed from the 9-12 year guideline range. The appellate court affirmed the departure sentence, finding it reasonable based primarily on the psychological trauma to the victim, and certified a question of great public importance regarding standards for appellate review of sentencing departures.
The departure sentence is affirmed because, although the trial court cited both valid and invalid reasons, it can be shown beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence, and the departure is reasonable when the primary focus was on the victim's psychological trauma.
[1] The traumatic nature of an offense and its incalculable impact upon the victim are valid reasons for departing from sentencing guidelines.
[2] A departure from sentencing guidelines based upon both valid and invalid reasons is reversible unless it can be shown beyond a reasonable doubt that the absence of the in…
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Join FLexlaw to unlock all legal intelligence“a departure from the guidelines based upon both valid and invalid reasons is reversible, unless it can be shown beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence”
Establishes the harmless error standard for sentencing departures relying on mixed valid and invalid reasons
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Join FLexlaw to unlock all legal intelligenceOchoa pled guilty to kidnapping with use of a firearm and armed robbery. The presumptive sentencing guideline range was 9-12 years. The trial court de…
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HALL, Judge.
Defendant pled guilty to the charges of kidnapping with the use of a firearm and one count of armed robbery. The presumptive range under the sentencing guidelines was between nine and twelve years. The trial court departed from the guidelines and sentenced defendant to forty years in state prison. On appeal defendant challenges the sentence contending that the trial court’s departure from the presumptive sentence was not based on valid, clear, and convincing reasons.
In stating its reasons for departure, the trial court cited the traumatic nature of the offense and the incalculable impact upon the victim. This reason has in itself been deemed by this court to be a valid reason for departure. Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984). The trial court also cited a reason for departure which was of dubious validity; i.e., that had the victim not freed himself the defendant would have murdered him.
In Albritton v. State, 476 So. 2d 158 (Fla.1985), the supreme court recently held that a departure from the guidelines based upon both valid and invalid reasons is reversible, unless it can be shown beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence.
It is amply evident that the trial court’s main concern in its departure from the guidelines was the psychological trauma inflicted upon the victim and his family. Judge Green went into great detail in setting forth the traumatic effects upon the victim and his family; and it is evident, beyond a reasonable doubt, that eliminating the invalid reasons, Judge Green would have entered the same sentence.
In Albritton the supreme court further stated: “An appellate court reviewing a departure sentence should look to the guidelines sentence, the extent of the departure, the reasons given for the departure, and the record to determine if the departure is reasonable.” Id. at 160.
We find that due to the emphasis placed upon the victim’s psychological trauma set forth in the reasons for the departure and in light of the record in this case that the departure is reasonable.
In view of the ruling in Albritton placing the arduous task upon the District Courts of Appeal of Florida to determine whether the trial court applied the proper discretionary criteria to a sentencing deviation, we certify the following question as one of great public importance:
WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE PERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, WHAT CRITERIA SHOULD AN APPELLATE COURT ADOPT IN DETERMINING IF THE SENTENCING COURT ABUSED ITS DISCRETION IN ITS EXTENT OF DEVIATION?
Affirmed.
SCHEB, A.C.J., and CAMPBELL, J., concur.
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Citator
Cited By (16 total)
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Dilar S. Booker v. State, 514 So. 2d 1079 (Fla. 1987)…inal conduct from crimes against property to violent crimes against person is a valid reasons for departure). The question certified to us by the Second District Court of Appeal in this case was previously certified by that court in Ochoa v. State, 476 So. 2d 1348 (Fla. 2d DCA 1985). In our decision in Ochoa (Ochoa v. State, 509 So. 2d 1115 (Fla.1987)), we did not address the certified question. After accepting jurisdiction in both Ochoa and the case sub judice, the legislature amended section 921.001(5), Flo…
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Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)…g whether a trial court has abused its discretion in departing from the recommended range of sentencing. Since no criteria have been identified to assist us in performing that function, we certify the following question, as we did in Ochoa v. State, 476 So. 2d 1348 (Fla. 2d DCA 1985), as one of great public importance: WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE PERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM T…
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Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986)…ened. The only other reason listed to justify a departure is the emotional trauma sustained by the victim. [*117] We have held that a victim’s psychological trauma is a valid reason to depart from the recommended guidelines sentence. Ochoa v. State, 476 So. 2d 1348 (Fla.2d DCA 1985). However, that psychological trauma must be unusually greater than the trauma necessarily contained in the elements of the criminal charges. Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984). After a consideration of the record of…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984)