WILLIAM W. DUVAL, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Duval was convicted of sexual battery and sentenced to 40 years, departing significantly from the sentencing guidelines range of 17-22 years. The Florida District Court of Appeal affirmed the conviction but remanded for resentencing, finding the trial court lacked valid reasons to depart from the guidelines.
The court affirmed the conviction, finding the hypnosis had no effect on the victim's identification ability and the identification procedures were proper. However, the court remanded for resentencing, holding that the trial court lacked valid reasons to depart from the guidelines, as the habitual offender statute was unavailable and the probation violation alone could not support departure.
[1] A victim's identification of a defendant is not rendered invalid by an unsuccessful attempt to enhance memory through hypnosis, provided the hypnosis had no discernible e…
[2] A trial court's departure from sentencing guidelines is invalid if based on the defendant meeting the definition of a habitual felony offender when the habitual offender…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is of no consequence that the police unsuccessfully attempted to enhance the victim's memory through hypnosis. It is apparent that the hypnosis had no effect upon the victim's ability to identify Duval.”
Establishes that the attempted hypnosis did not taint the victim's identification or render it unreliable.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuval was charged with sexual battery under Florida law. The victim provided a description to police within four days of the rape, which was used to c…
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FRANK, Judge.
The appellant, William W. Duval, III, challenges his conviction for sexual battery and the trial court’s departure from the sentencing guidelines. We affirm the conviction but remand for resentencing.
Duval was charged with sexual battery violative of section 794.011(3), Florida Statutes (1984), and was tried before a jury. Prior to the trial, he moved to suppress the victim’s out-of-court identification on the ground that the process was unduly suggestive and tainted by an attempted hypnosis of the victim. The motion was denied. At trial, the victim again identified Duval as her assailant. The state submitted circumstantial evidence linking him to the crime and the jury returned a verdict of guilty of sexual battery.
Upon sentencing, the trial court reviewed a sentencing guidelines scoresheet indicating a presumptive sentencing range of 17 to 22 years of imprisonment. The trial court, however, departed from the recommended range and sentenced Duval to a 40 year term of incarceration. Its written reasons for departure are as follows:
That the defendant committed the sexual battery while on probation; and that the evidence produced by the state at sentencing showed that the defendant met the definition of habitual felony offender. In doing so, the court further found that imposition of his sentence was necessary for the protection of the public from further criminal activity.
Duval contends that the hypnosis administered to the victim rendered any subsequent identification suspect. We disagree. Prior to the hypnotic session and within four days of the rape, the victim provided a police artist with a description of the rapist. The artist sketched a picture of the suspect which was circulated among various law enforcement agencies. As a result, a probation officer recognized Duval and forwarded his name to the police. Subsequently, based upon this information the police compiled two photopaks and conducted a lineup from which the victim identified Duval. It is of no consequence that the police unsuccessfully attempted to enhance the victim’s memory through hypnosis. It is apparent that the hypnosis had no effect upon the victim’s ability to identify Duval. We reject his challenge to the sufficiency of the evidence, see Thomas v. State, 167 So. 2d 309 (Fla.1964), and his attack upon the identification procedures utilized by the police.
We do, however, find merit in Du-val’s contention that the trial court failed to provide valid reasons for its departure from the guidelines. The habitual offender statute appears no longer available as a sentencing tool. In Whitehead v. State, 498 So. 2d 863 (Fla.1986), a majority of our supreme court concluded that section 775.-084, Florida Statutes (1985), cannot be preserved in the context of the sentencing scheme provided by the guidelines.
The trial court also erred in departing more than one cell upon a finding that Duval committed a sexual crime during his probationary period. We do not gainsay, however, that a probation violation enhanced beyond one cell is permitted but such enhancement must itself be grounded upon “clear and convincing” reasons and not the mere violation of probation. Finally, the need to protect the public from Duval’s potential future criminal activity will not support departure. Reid v. State, 488 So. 2d 913 (Fla. 2d DCA 1986).
The trial court having had no valid basis for departure at the initial sentencing, it may not depart upon resentencing. Accordingly, we affirm Duval’s conviction but remand to the trial court for sentencing within the guidelines.
GRIMES, A.C.J., and SCHOONOVER, J., concur.
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Citator
Cited By
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Duval v. State, 539 So. 2d 15 (Fla. 2d DCA 1989)…ALTERNBERND, Judge. Duval appeals his resentencing for sexual battery. Because this case is controlled by Smith v. State, 536 So. 2d 1021 (Fla.1988), we reverse and remand for resen-tencing. In Duval v. State, 500 So. 2d 570 (Fla. 2d DCA 1986), this court affirmed the defendant’s conviction for sexual battery. This court, however, reversed his departure sentence of forty years’ imprisonment and remanded for resentencing “within the guidelines.” At his initial sentenci…
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Chatman v. State, 533 So. 2d 915 (Fla. 2d DCA 1988)…la. 2d DCA 1987). The willfulness of the defendant is an element of every violation of probation. Id. at 102 (citing Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980)). See also Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987); Duval v. State, 500 So. 2d 570 (Fla. 2d DCA 1986) (a clear and convincing reason other than the violation of probation must be provided in writing by the trial court to support a departure beyond the one-cell enhancement). We reverse and remand this case to the trial court to im…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Ellis Thomas, Jr. v. State, 167 So. 2d 309 (Fla. 1964)
- Jones v. State, 488 So. 2d 913 (Fla. 2d DCA 1986)
- Reid v. State, 488 So. 2d 913 (Fla. 2d DCA 1986)