JACK DOWLING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jack Dowling appeals his 30-year sentence for sexual activity with a child, which represented a substantial departure from the guideline sentence of 5.5 to 7 years. The court vacates the sentence and remands for resentencing because the trial judge based the departure on invalid reasons under Florida sentencing law.
The court holds that none of the five stated reasons for departure are valid. The young age of the victim and the relationship between victim and offender are statutory components of the crime and cannot justify departure. Protection of society, psychological trauma to the victim, and factors relating to the instant offense for which no conviction was obtained are all invalid departure reasons under established Florida law.
[1] A trial court may not use an inherent component of the crime charged to justify a departure sentence.
[2] The age of the victim and the familial or custodial relationship between the offender and the victim are inherent components of the crime of sexual activity with a child…
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Join FLexlaw to unlock all legal intelligence“a trial court may not use an inherent component of the crime in question to justify departure”
Establishes the core principle that statutory elements of the crime cannot be used as departure reasons
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Join FLexlaw to unlock all legal intelligenceDowling pleaded guilty to sexual activity with a child 12 years or older in a position of familial or custodial authority (his stepdaughter). The Stat…
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ORFINGER, Judge.
The defendant appeals from a guidelines departure sentence. Because the trial judge based the departure on invalid reasons, we must vacate the sentence and remand for resentencing.
The defendant was charged by information with one count of sexual activity with a child 12 years of age or older but less than 18 years of age by a person in a position of familial or custodial authority,1 [§ 794.041, Fla.Stat. (1985) ] and one count of sexual battery upon a child under 12 years of age [§ 794.011(2), Fla.Stat. (1985) ]. In exchange for the State’s agreement to nolle pros the sexual battery charge, the defendant entered a plea of guilty to the charge under section 794.041.
The judge departed from the recommended guidelines sentence of 5V2 to 7 years and sentenced the defendant to a 30 year term of imprisonment. The written reasons upon which the trial court based its departure can be summarized as follows: (1) the young age of the victim; (2) the father-daughter relationship between the defendant and the victim (defendant was the victim’s step-father); (3) that the departure is necessary for the protection of society; (4) the continuing and repeated nature of the defendant’s assaults; and (5) the severe emotional and psychological trauma suffered by the victim.
The Florida supreme court has held that a trial court may not use an inherent component of the crime in question to justify departure. State v. Cote, 487 So. 2d 1039 (Fla.1986). The age of the victim and the relationship between the victim and the offender are both statutory components of the crime in question. Thus, the first two reasons cannot justify a departure sentence. The third reason has already been held an invalid reason for departure. Holden v. State, 487 So. 2d 1199 (Fla.5th DCA 1986). The fourth reason is also invalid as Rule 3.701(d)(ll), Florida Rules of Criminal Procedure, prohibits the use of factors relating to the instant offense for which convictions have not been obtained.
Finally, psychological trauma to a victim of a sexual crime was held not to be a valid reason for departure in Lerma v. State, 497 So. 2d 736 (Fla.1986), where the supreme court stated that emotional hardship can never constitute a clear and convincing reason to depart in a sexual battery case because nearly all sexual battery cases inflict emotional hardship on the victim.
Lerma, 497 So. 2d at 739. Lerma was not available to the trial judge when this sentence was imposed, and it is dispositive of this issue here.
Because none of the reasons stated constitute a valid basis for departure, we need not consider defendant’s contention that the extent of the departure was an abuse of discretion.
The sentence is VACATED and the cause is REMANDED for resentencing.
UPCHURCH, C.J., and COBB, J., concur. . Any person who stands in a position of familial or custodial authority to a child twelve years of age or older but less than eighteen years of age and who:
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(b) Engages in sexual activity with that child is guilty of a felony in the first degree ...
§ 794.041(2), Fla.Stat. (1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Odom v. State, 561 So. 2d 443 (Fla. 5th DCA 1990)…valid reason for departure. Also, a long line of cases have held that protection of society is an invalid reason for departure from a recommended guidelines sentence. See e.g. Ridgeway v. State, 555 So. 2d 960 (Fla. 1st DCA 1990); Dowling v. State, 495 So. 2d 874 (Fla. 5th DCA 1986). Therefore, both reasons stated by the court in its second finding are invalid reasons for départure. Since each reason cited by the court is invalid, we vacate appellant’s sentence and remand for sentencing within the recommend…
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Cathern "Cathy" Vogtsberger v. State, 502 So. 2d 984 (Fla. 1st DCA 1987)…d of time of abuse, is invalid under Fla.R.Crim.P. 3.701(d)(ll), which prohibits the use of factors relating to the instant offense for which convictions have not been obtained. Kokx v. State, 498 So. 2d 534 (Fla. 1st DCA 1986) and Dowling v. State, 495 So. 2d 874 (Fla. 5th DCA 1986). Last, appellant presents two arguments in support of her contention that the trial court erred in imposing costs pursuant to section 27.3455(1): (1) that the statute may not be applied to crimes committed prior to its effective…
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Walker v. State, 519 So. 2d 1105 (Fla. 3d DCA 1988)…ix v. State, 475 So. 2d 1218 (Fla.1985). See Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986) (threat to society impermissible); Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986) (threat to society impermissible reason to depart); Dowling v. State, 495 So. 2d 874 (Fla. 5th DCA 1986) (reason that “the departure is necessary for the protection of society” is impermissible); Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986) (“protection of the community at large” impermissible); Holden v. State, 487 So. 2d 1199…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Holden v. State, 487 So. 2d 1199 (Fla. 5th DCA 1986)
- Lerma v. State, 497 So. 2d 736 (Fla. 1986)