THOMAS ALVIN CONNELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Connell appealed his conviction and sentence for sexual battery and lewd assault of a child. The court affirmed the conviction but reversed the sentence, finding that all four reasons the trial court cited for departing from sentencing guidelines were invalid.
The court held that all four reasons cited by the trial court for departure were invalid: (1) physical and psychological harm to victims is not a valid reason under Lerma v. State; (2) the multiple-occasion, protracted-time reason necessarily considers already-scored offense factors and lacks clear and convincing support; (3) fear and threats of force accompanying the crimes is invalid under Lerma; and (4) destruction of the family unit is inherent in the crime itself and thus cannot support departure.
[1] Physical and psychological harm inflicted upon victims is an invalid reason for departing from sentencing guidelines.
[2] Crimes occurring on multiple occasions over a protracted period, when such factors are scored in the offenses, are not a clear and convincing reason to depart from senten…
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Join FLexlaw to unlock all legal intelligence“Since we find all four reasons invalid, we affirm the conviction, but reverse and remand the sentences with instruction that the appellant be sentenced within the guidelines.”
Establishes the court's disposition and ultimate ruling that the sentencing guidelines must be followed.
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Join FLexlaw to unlock all legal intelligenceConnell was convicted of sexual battery and lewd assault of a child under fourteen years of age. The victim was his stepdaughter. The crimes occurred …
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SANDERLIN, Judge.
Connell appeals his conviction and sentence following a jury trial. We find merit in his challenge to the sentence imposed and therefore, we reverse.
In its order entitled: “Reasons for Exceeding the Sentencing Guidelines,” the trial court listed four reasons for departure. We address each reason and hold that each is invalid and cannot justify departure.
Reason one involves physical and psychological harm inflicted upon the victims. The supreme court has recently held this reason invalid. Lerma v. State, 497 So. 2d 736 (Fla.1986).
Reason two recites that the crimes committed by Connell “occurred on multiple occasions, over a protracted period of time.” This reason necessarily considers factors relating to the offenses for which convictions were obtained and scored. Furthermore, we find this reason is not clear and convincing and cannot support departure. See Fla.R.Crim.P. 3.701(d)(ll).
Reason three is a repetition of reason one. The court states that the crimes committed were “... accompanied with fear and threats of force.” As with reason one, we hold this reason is invalid. See Lerma, supra.
Reason four notes that Connell’s actions “... served to destroy a family unit.” Though this may have caused the trial court concern, it is not a clear and convincing reason to depart. Nearly all crimes have the potential to destroy a family unit. In fact, such a result is a common, logical consequence of criminal activity. If it were otherwise and destruction of the familial unit was a rarity, then it could possibly suffice as a clear and convincing reason for departure. In this case, Connell was convicted of sexual battery and lewd assault of a child under fourteen years of age. See § 794.011(4) and § 800.04, Fla. Stat. (1983). The child was his stepdaughter. Undoubtedly, the crimes had a devastating effect upon the family unit involved. However, the destruction of the family unit was a matter “inherent within the crime for which defendant was convicted” and therefore could not support departure. See Pittman v. State, 498 So. 2d 592 (Fla.1986).
Since we find all four reasons invalid, we affirm the conviction, but reverse and remand the sentences with instruction that the appellant be sentenced within the guidelines.
SCHEB, A.C.J., and HALL, J., concur.
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Cited By
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Jaggers v. State, 509 So. 2d 1165 (Fla. 1st DCA 1987)…la.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 judge states that because appellant cannot control his problem, and community control has failed, appel…
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Allen v. State, 522 So. 2d 850 (Fla. 4th DCA 1987)…re; although emotional and financial suffering of victim’s family is not valid reason for departure in murder or sexual battery crimes, Carter v. State, 485 So. 2d 1292, 1295 (Fla. 4th DCA), rev. denied, 494 So. 2d 1149 (Fla.1986), Connell v. State, 502 So. 2d 1272 (Fla. 2d DCA 1987), in this case the emotional hardship and destruction of the family unit are not inherent components of the crime of robbery, as they are in the crimes of murder and sexual battery, thus, it is a valid reason for departure; Leath v…
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Barrentine v. State, 521 So. 2d 1093 (Fla. 1988)…lascivious conduct as proscribed by section 800.04, Florida Statutes (1985), citing its recent decision in Kokx v. State, 498 So. 2d 534 (Fla. 1st DCA 1986). We note the Second District Court of Appeal has taken a contrary view in Connell v. State, 502 So. 2d 1272 (Fla. 2d DCA 1987), and applied the Lerma view to a conviction under section 800.04, Florida Statutes. The issue is emotional trauma — not physical trauma. We conclude that if the principles we have adopted for sentencing departure are to be applied…
Authorities Cited
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- State v. Connell, 478 So. 2d 1176 (Fla. 2d DCA 1985)
- Pittman v. State, 498 So. 2d 592 (Fla. 2d DCA 1986)