MARK FRANKLIN BARRENTINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Franklin Barrentine appeals his departure sentence for lewd and lascivious assault upon a child, challenging the trial court's assessment of victim injury points and the use of psychological trauma as grounds for departure. The Florida District Court of Appeal affirmed the sentence, holding that victim contact in such cases may be scored as victim injury and that psychological trauma can justify departure from guidelines in lewd and lascivious assault cases.
The court held that victim contact in a lewd and lascivious assault case may properly be scored as victim injury on the guidelines scoresheet. Additionally, psychological trauma suffered by the victim may justify departure from the recommended guidelines sentence in lewd and lascivious assault cases prosecuted under section 800.04, distinguishing such cases from sexual battery cases where emotional hardship cannot justify departure.
[1] Victim contact in a lewd and lascivious assault case may be scored as victim injury on the sentencing guidelines scoresheet.
[2] Psychological trauma suffered by a victim can justify a departure from a recommended sentencing guidelines sentence, unless such trauma is an inherent component of the cr…
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Join FLexlaw to unlock all legal intelligence“Psychological trauma suffered by the victim may justify departure from a recommended guidelines sentence except where psychological trauma is necessarily an inherent component of the crime”
Establishes the general rule that psychological trauma can support sentencing departure but with important exceptions, such as for inherent components of crimes.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of lewd and lascivious assault upon a 14-year-old boy whom he enticed into the woods. He had physical contact with the victim …
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WENTWORTH, Judge.
Appellant seeks review of his departure sentence upon conviction of lewd and lascivious assault upon a child, in violation of section 800.04, Florida Statutes. Appellant raises two issues on appeal: 1) whether the trial court erred in assessing points on the guidelines scoresheet for victim injury; and 2) whether the trial court erred in departing from the recommended guidelines sentence on the basis of the victim’s psycho logical trauma. We find no error in the trial court’s assessment of points for victim injury and we conclude that, under the circumstances of this case, the psychological trauma of the victim was a valid reason for departure. We therefore affirm.
Appellant was charged with lewd and lascivious assault upon a child.- Following a jury verdict, he was convicted of the offense and sentenced outside the sentencing guidelines to 10 years incarceration. The recommended guidelines range for the offense was 5½ to 7 years incarceration. As a ground for departure, the trial judge stated:
The defendant’s violent physical and sexual assault on a 14 year old boy, unknown to him and enticed into the woods for purposes of the assault, has caused the victim to suffer great and emotional trauma.
In computing the sentencing guidelines scoresheet, the court assessed 20 points for the victim injury category of “contact but no penetration.”
When, as in this case, the offense of lewd and lascivious assault involves victim contact, that fact may be scored on the guidelines scoresheet as victim injury. Cf. Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985); O’Bright v. State, Case No. BL-168 (Fla. 1st DCA March 20,1987). The information here charged that appellant “did handle, fondle or make an assault” upon the victim and the record supports a finding that appellant did have physical contact with the victim. The trial court thus correctly assessed points for victim injury on the scoresheet.
Psychological trauma suffered by the victim may justify departure from a recommended guidelines sentence except where psychological trauma is necessarily an inherent component of the crime, such departure being improper for trauma from the “well-founded fear” required for aggravated assault under sections 784.011(1) and 784.021, Florida Statutes. State v. Cote, 487 So. 2d 1039 (Fla.1986). Although the Florida Supreme Court in Lerma v. State, 497 So. 2d 736, 739 (Fla.1986), stated that “emotional hardship can never constitute a clear and convincing reason to depart in a sexual battery case because nearly all sexual battery cases inflict emotional hardship on the victim,” this court has construed that rationale to be most reasonably confined to sexual battery cases prosecuted under section 794.011(l)(h), Florida Statutes. Kokx v. State, 498 So. 2d 534, 535 (Fla. 1st DCA 1986). The statute involved in this appeal, section 800.04, supra, appears to be distinguishable for reasons stated in Kokx.
The requisite standard of proof for the factual finding supporting departure was met in the present case by evidence showing the child victim was violently assaulted, and that as a result of the incident he suffered public humiliation, ran away from home and was suspended from school. Lawson v. State, 498 So. 2d 541 (Fla. 1st DCA 1986).
The order is affirmed.
WIGGINTON and NIMMONS, JJ., . concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Seagrave v. State, 802 So. 2d 281 (Fla. 2001)…der section 800.04(1) with fondling the victim’s genitals and having her fondle the defendant’s genitals, without committing the crime of sexual battery, could be assessed victim impact points for "contact but no penetration."); Barrentine v. State, 504 So. 2d 533, 534 (Fla. 1st DCA 1987) (holding that the imposition of victim injury points was proper where defendant was convicted of lewd and lascivious assault where information stated that the defendant "did handle, fondle or make an assault” upon the victim…
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MacKey v. State, 516 So. 2d 330 (Fla. 1st DCA 1987)…ut victim contact. The court found that because Worling, like appellant here, had touched the victim as charged in the information, the trial court did not err by adding twenty points to his guidelines scoresheet. Also, although Barrentine v. State, 504 So. 2d 533 (Fla. 1st DCA 1987), is distinguished by the violence of the assault, therein Barrentine was convicted of lewd and lascivious assault upon a child and was scored the same 20 points as appellant here for victim injury. This court concluded that where…
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Johnson v. State, 543 So. 2d 1289 (Fla. 4th DCA 1989)…coresheet. Appellant has failed to demonstrate error in the calculation of his guidelines scoresheet. One recent example of a court’s separate assessment of points for victim injury in an offense which involved victim injury is Barrentine v. State, 504 So. 2d 533 (Fla. 1st DCA 1987), reversed on other grounds, 521 So. 2d 1093 (Fla.1988). In Barrentine, the first district affirmed a sentence which charged a defendant on his guidelines scoresheet with twenty points for victim injury, where the evidence showed…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985)
- Lawson v. State, 498 So. 2d 541 (Fla. 1st DCA 1986)
- Kokx v. State, 498 So. 2d 534 (Fla. 1st DCA 1986)