FERNANDO F. ALEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the reasons given for departing from sentencing guidelines were invalid, requiring resentencing.
Appellant was convicted of sexual battery and burglary. The trial court departed from sentencing guidelines based on three reasons: psychological trau…
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GEIMES, Acting Chief Judge.
We find that appellant was properly convicted of sexual battery and burglary of a dwelling. However, his sentence must be reversed because none of the reasons given for departure from the guidelines can stand.
The three reasons for departure and an analysis of their invalidity follows:
Extreme psychological trauma to victim of sexual battery.
On the theory that departures cannot be based on factors common to nearly all crimes in the sentencing category, our supreme court has held that emotional hardship can never constitute a clear and convincing reason for departure in a sexual battery case. Lerma v. State, 497 So. 2d 736 (Fla.1986). Unprovoked attack upon an infant child.
While appellant did attack the victim’s child during the course of the sexual battery, appellant was neither charged nor convicted for such attack. Hence, this constituted a factor relating to the instant offense for which a conviction has not been obtained. Fla.R.Crim.P. 3.701(d)(11). Tyner v. State, 491 So. 2d 1228 (Fla.2d DCA 1986).
Prior similar acts show a propensity to commit similar acts.
Prior convictions of similar crimes is not a valid reason for departure. Baker v. State, 493 So. 2d 515 (Fla. 1st DCA 1986).
We affirm appellant’s convictions but reverse the sentences and remand for resentencing within the guidelines’ presumptive sentencing range.
CAMPBELL and LEHAN, JJ„ concur.
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Bradley v. State, 509 So. 2d 1137 (Fla. 2d DCA 1987)…apable of rehabilitation is no less infirm under presently settled standards. Washington v. State, 501 So. 2d 133 (Fla. 2d DCA 1987). The similarity of Bradley’s present criminal behavior with his past convictions will not withstand Aleman v. State, 498 So. 2d 967 (Fla. 2d DCA 1986). Here, unlike the circumstances warranting departure in State v. Pentaude, 500 So. 2d 526 (Fla.1987), the record does not reflect Bradley’s violation of probation but only the currency of a “parole” violation proceeding; that fact…
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McCLURE v. State, 513 So. 2d 1119 (Fla. 2d DCA 1987)…criminal conduct. This reason is insufficient, see Allen v. State, 476 So. 2d 309 (Fla. 2d DCA 1985). (7) “While on probation the defendant continued his same course of conduct in dealing in drugs.” This reason is insufficient. See Aleman v. State, 498 So. 2d 967 (Fla. 2d DCA 1986) [in effect receding from Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984) ]. Upon remand the defendant shall be re-sentenced within the recommended guidelines range. Affirmed in part, reversed in part, and remanded for resent…
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Migilore v. State, 550 So. 2d 163 (Fla. 1st DCA 1989)…ce on this crime. He shows no remorse. None of the reasons listed on the score-sheet is sufficient for departure from the guidelines. Whitehead v. State, 498 So. 2d 863 (Fla.1987); Hill v. State, 498 So. 2d 544 (Fla. 1st DCA 1986); Aleman v. State, 498 So. 2d 967 (Fla. 2d DCA 1986); Bradley v. State, 509 So. 2d 1137 (Fla. 2d DCA 1987); State v, Mischler, 488 So. 2d 523 (Fla.1986); Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Rease v. State, 485 So. 2d 5 (Fla. 1st DCA 1986); Pendleton v. State, 493 So. 2d 11…
Authorities Cited
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- Baker v. State, 493 So. 2d 515 (Fla. 1st DCA 1986)
- Tyner v. State, 491 So. 2d 1228 (Fla. 2d DCA 1986)
- Lerma v. State, 497 So. 2d 736 (Fla. 1986)