EDWARD LEON ROUSSEAU, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1986-04-22
No. BF-484
SMITH and THOMPSON, JJ., concur.
496 So. 2d 830 Florida District Court of Appeal, First District (1986) Positive Treatment
Cited by 2 cases

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Synopsis

Rousseau appeals his sentence of 5 years imprisonment for three burglaries and a restitution requirement. The court affirms the sentence despite finding some of the trial judge's reasons for departing from sentencing guidelines were invalid, because the valid reasons alone would have supported the imposed sentence.


Holding

The sentence outside the guidelines is affirmed because the valid reasons for departure (temporal circumstances of the crimes and psychological trauma to victims) would support the sentence even though two other reasons were invalid. Restitution is a proper condition of probation because the victims' damages bore a significant relationship to the convicted offense of burglary.


Headnotes

[1] The temporal circumstances of crimes are an acceptable reason for departing from sentencing guidelines.

[2] Psychological trauma suffered by victims is an acceptable reason for departing from sentencing guidelines.

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Key Quotes

“When a guidelines sentence is grounded on both valid and invalid reasons, the sentence should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the sentence.”

Establishes the legal standard for reviewing sentencing departures based on mixed valid and invalid reasons

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Facts & Procedural History

Rousseau was charged with three counts of burglary of a dwelling and grand theft. He pleaded guilty to the three burglary charges with the understandi…

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

Rousseau appeals from the imposition of sentence outside the sentencing guidelines and from the imposition of restitution as a condition of his probation. We affirm.

Rousseau was charged in each of three separate informations with burglary of a dwelling and grand theft. He thereafter withdrew his plea of “not guilty” and entered a guilty plea to the three burglary charges, “only with the understanding that upon acceptance of the plea the state will announce a nol. pros, on the second count in each information [grand theft] and the court will order a PSI.”

Rousseau’s plea was accepted and he was sentenced pursuant to the guidelines. His scoresheet reflected a point total of 50, corresponding to a recommended sentence range of “community control or 12-30 months incarceration.” The trial judge departed from this recommendation, sentencing Rousseau to three concurrent terms of 5-years imprisonment, to be followed by 10-years probation, with full restitution to the three victims.

The court explained its departure as follows: 1) Rousseau committed three burglaries in a three-week time span; 2) his victims suffered psychological trauma; 3) the victims’ homes were violated; 4) Rousseau’s extensive prior record of misdemeanor offenses; and 5) the expressed desire that he understand that his crimes would not be tolerated in Clay County.

Temporal circumstances of the crimes is an acceptable reason for departure. Decker v. State, 482 So. 2d 511 (Fla. 1st DCA 1986); Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985). Psychological trauma to the victims has been similarly approved. Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986); Harris v. State, 482 So. 2d 548 (Fla. 4th DCA 1986); Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986).

However, the violation of the victims’ homes is an element of the crime charged; namely, burglary, and is therefore not a proper reason for departure. See Section 810.02(1), Florida Statutes (1983); Knowlton v. State, 466 So. 2d 278 (Fla. 4th DCA) p.f.r.d. State v. Knowlton, 476 So. 2d 675 (Fla.1985). Neither was it correct to rely on Rousseau’s prior misdemeanor record, since it had already been considered in arriving at his guidelines score. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Deer v. State, 476 So. 2d 163 (Fla.1985). Finally, Rousseau’s “need to understand that his crimes were not acceptable in the county of sentencing” was rejected in Santiago v. State, 478 So. 2d 47 (Fla.1985), which held that the community in which the crime is committed is irrelevant. See also Smith v. State, 479 So. 2d 804 (Fla. 1st DCA 1985) (reason improper if totally unrelated to the offense).

When a guidelines sentence is grounded on both valid and invalid reasons, the sentence should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the sentence. Albritton v. State, 476 So. 2d 158, 160 (Fla.1985). Despite the fact that three of the five reasons given by the trial court are invalid, we are convinced beyond a reasonable doubt that the absence of these invalid reasons would not have affected the sentence imposed herein.

We also find that, under the circumstances of this case, the requirement of restitution as a condition of probation was proper. In J.S.H. v. State, 472 So. 2d 737 (Fla.1985), the Supreme Court held that “it is not necessary that the offense charged describe the damage done in order to support a restitution order but only that the damage bear a significant relationship to the convicted offense.” J.S.H., at 738 (emphasis supplied). Here, Rousseau plead guilty to burglary with respect to all three victims, or, in the language of the charging document, to “unlawfully entering or remaining in a structure with the intent to commit an offense therein, to-wit: theft.” (emphasis supplied) Therefore, the victims’ damages, i.e. the value of their stolen property, bore a significant relationship to the convicted offense of burglary so as to support the restitution order herein.

Affirmed.

SMITH and THOMPSON, JJ., concur.


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Citator

Cited By

  • Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1991)
    …hs), it cannot be said that there was a significant relationship between either the losses from the unrecovered items or damage done during the burglary and appellant’s crime. Of. [*638] J.S.H. v. State, 472 So. 2d 737 (Fla.1985); Rousseau v. State, 496 So. 2d 830 (Fla. 1st DCA 1986), approved, 509 So. 2d 281 (Fla. 1987); Lawson v. State, 498 So. 2d 541 (Fla. 1st DCA 1986), review denied, 506 So. 2d 1042 (Fla.1987). Therefore, because neither prong of the above test was satisfied, those portions of order requ…

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