JOSEPH G. CORTEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A departure sentence is invalid if based in part on a reason already factored into the presumptive sentence.
Appellant was convicted of aggravated child abuse and sentenced. The trial court departed from the recommended guidelines sentence based on psychologi…
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PER CURIAM.
Appellant appeals his sentence resulting from a conviction for aggravated child abuse. Appellant has raised several issues on appeal, but merit is found only in the allegation that the court impermissibly departed from the sentence recommended by the guidelines. The written reasons set forth by the court for departing were (1) psychological abuse attending the physical injury and (2) degree of victim injury.
The presentence investigation report as well as medical testimony presented at sentencing amply supported the court’s conclusion that lingering psychological effects will continue as a result of the injury inflicted. Since psychological trauma is a valid reason for departure, Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986), the court was correct in using this as a reason for departure. The court also departed by reason of the degree of victim injury, a factor for which scoresheet points were assessed. Since it is improper to base a departure on a reason which has already been weighed in arriving at the presumptive sentence, Hendrix v. State, 475 So. 2d 1218 (Fla.1985), reason two is invalid.
Faced with evaluating two reasons where one is valid and one is invalid, we have not been convinced beyond a reasonable doubt that the trial judge would have nevertheless departed. Albritton v. State, 476 So. 2d 158 (Fla.1985). Accordingly, we affirm appellant’s conviction but reverse and remand for resentencing.
GRIMES, A.C.J., and RYDER and HALL, JJ., concur.
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Citator
Cited By
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Reed v. State, 192 So. 3d 641 (Fla. 2d DCA 2016)…tors like victim injury and criminal history were also unusable because they were already calculated into a defendant’s sentence. See Hall v. State, 517 So. 2d 692, 694 (Fla.1988); Hendrix v. State, 475 So. 2d 1218, 1220 (Fla.1985); Cortez v. State, 497 So. 2d 671, 672 (Fla. 2d DCA 1986). Moreover, as the supreme court pointed out in Keys, all criminally punishable conduct is “presumed to be dangerous to the community” to some degree. 500 So. 2d. at 136. The text of section 775.082(10) indicates that the leg…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986)