JAMES ARTHUR THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Arthur Thomas was convicted of sexual battery. While the appellate court affirmed his conviction, it vacated his sentence because the trial judge improperly departed from Florida's sentencing guidelines by relying on reasons that were either inherent to the crime charged or otherwise invalid under appellate precedent.
The trial court did not err in refusing to give lesser included offense instructions for crimes two steps removed from the charged offense. However, the sentence must be vacated because the trial judge improperly departed from the sentencing guidelines by relying on seven reasons that were either inherent to the crime, duplicative of factors already scored, or otherwise invalid under precedent.
[1] A trial court is not required to give jury instructions for lesser included offenses that are two steps removed from the crime charged when the defendant is convicted of…
[2] A sentence that clearly violates sentencing guidelines must be vacated on appeal.
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Join FLexlaw to unlock all legal intelligence“It was not reversible error for the trial judge to refuse to give certain jury instructions because the requested lesser included offense instructions involved crimes two steps removed from the crime charged and the appellant was convicted as charged.”
Establishes the holding regarding jury instructions for lesser included offenses
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Join FLexlaw to unlock all legal intelligenceThomas was convicted of sexual battery. The trial judge imposed a sentence that departed from the sentencing guidelines, citing seven reasons includin…
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[*753] DAUKSCH, Judge.
This is an appeal from a sexual battery conviction. It was not reversible error for the trial judge to refuse to give certain jury instructions because the requested lesser included offense instructions involved crimes two steps removed from the crime charged and the appellant was convicted as charged. State v. Abreau, 363 So. 2d 1063 (Fla.1978). There is some doubt, in any event, whether the prosecutor’s charge against appellant would support the aggravated assault and aggravated battery lesser included offense requested instructions. See Harrielson v. State, 441 So. 2d 691 (Fla. 5th DCA 1983). No other trial error is perceived.
However, again we must vacate a sentence which clearly violates the sentencing guidelines. The supreme court .has ruled that all judges must follow the guidelines. To not follow the guidelines leads only to appellate review and the vacating of the sentence. No benefit to anyone is ultimately derived by exceeding the guidelines improperly.
The reasons for departure are all improper: 1) the victim’s age is not proper because it is an inherent component of the crime of sexual battery upon a person twelve years of age or older, Dowling v. State, 496 So. 2d 1001 (Fla. 5th DCA 1986); 2) psychological trauma to a victim of a sexual crime is invalid, Lerma v. State, 497 So. 2d 736 (Fla.1986); 3) life-threatening physical force which is “not adequately or fairly reflected in ‘victim injury’ portion of scoresheet” is part of the crime charged, State v. Mischler, 488 So. 2d 523 (Fla.1986); Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985) approved 483 So. 2d 423 (Fla.1986); Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984) approved 477 So. 2d 565 (Fla.1985); 4) victim was kidnapped is improper because there was no conviction for kidnapping, Allen v. State, 479 So. 2d 257 (Fla. 2d DCA 1985); Fla.R.Crim.P. 3.701(d)(ll); 5) appellant lied to police is clearly impermissible, Guerrero v. State, 484 So. 2d 59 (Fla. 2d DCA 1986); Edwards v. State, 482 So. 2d 553 (Fla. 2d DCA 1986); Ricardo v. State, 481 So. 2d 1296 (Fla. 3d DCA) rev. denied, 494 So. 2d 1152 (Fla.1986); Hearn v. State, 470 So. 2d 826 (Fla. 2d DCA 1985); Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985); Sarvis v. State, 465 So. 2d 573 (Fla. 1st DCA 1985); 6) appellant was on probation already factored into score, Mischler, supra; and, 7) cannot live in a non-structured environment and protection of society demands institutionalization is already factored under prior record, Tillman v. State, 482 So. 2d 603 (Fla. 5th DCA 1986); Fowler v. State, 482 So. 2d 602 (Fla. 5th DCA 1986); Pilgrim v. State, 480 So. 2d 688 (Fla. 5th DCA 1985).
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.
UPCHURCH, C.J., and ORFINGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jaggers v. State, 509 So. 2d 1165 (Fla. 1st DCA 1987)…rdship on the victim has been proven beyond a reasonable doubt. Hankey v. State, 485 So. 2d 827, 828 (Fla.1986), appeal after remand, 505 So. 2d 701 (Fla.1987). See also State v. Rousseau, 509 So. 2d 281 (Fla.1987). Further, we find Thomas v. State, 501 So. 2d 752 (Fla. 5th DCA 1987), Casteel v. State, 498 So. 2d 1249 (Fla.1986) and Connell v. State, 502 So. 2d 1272 (Fla. 2d DCA 1987) distinguishable as involving sexual battery convictions, unlike the instant case. In the court’s second departure reason, the…
Authorities Cited (20 total)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)
- State v. Terence A. Baker, 483 So. 2d 423 (Fla. 1986)
- Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985)
- Smith v. State, 465 So. 2d 573 (Fla. 4th DCA 1985)
- State v. Davis, 477 So. 2d 565 (Fla. 1985)
- Bertley S. Pilgrim v. State, 480 So. 2d 688 (Fla. 5th DCA 1985)