JORGE OCHOA, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Ochoa pled guilty to kidnapping with a firearm and armed robbery. The trial court sentenced him to 40 years, exceeding the presumptive guideline range of 9-12 years, based partly on the victim's emotional trauma. The Florida Supreme Court quashed the departure sentence, holding that psychological trauma inherent in the crime itself cannot justify sentencing above the guidelines.
Emotional and psychological trauma inherent in a crime cannot justify a departure sentence above the sentencing guidelines. The Court held that some degree of psychological trauma is always present in kidnapping, and absent extraordinary circumstances clearly not inherent in the crime, the trial court may not depart from the guidelines based on that trauma.
[1] Emotional and psychological trauma suffered by a victim does not justify a departure sentence when such trauma is inherent in the crime charged.
[2] A departure sentence is not justified by the psychological trauma inflicted upon a victim if there is no evidence of extraordinary circumstances clearly not inherent in t…
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Join FLexlaw to unlock all legal intelligence“emotional and psychological trauma suffered by the victim cannot justify a departure sentence when it is the type of trauma that is inherent in the crime in question”
Establishes the core holding that only trauma extraordinary and not inherent in the crime can justify sentencing above guidelines
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Join FLexlaw to unlock all legal intelligenceOchoa pled guilty to kidnapping with use of a firearm and armed robbery. The sentencing guidelines called for a presumptive range of 9-12 years. The t…
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PER CURIAM.
We have for review Ochoa v. State, 476 So. 2d 1348 (Fla. 2d DCA 1985), in which the court certified a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Ochoa pled guilty to charges of kidnapping * with the use of a firearm and armed robbery. Under the sentencing guidelines, the presumptive range was nine to twelve years imprisonment. The trial court exceeded that range and sentenced Ochoa to two concurrent forty-year sentences, offering several reasons for the departure. The district court found all but one of the proffered reasons invalid and concluded: “[I]t is evident, beyond a reasonable doubt, that eliminating the invalid reasons, [the trial judge] would have entered the same sentence.” 476 So. 2d at 1349. The district court affirmed the departure and certified the following as a question of great public importance:
WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE PERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, WHAT CRITERIA SHOULD AN APPELLATE COURT ADOPT IN DETERMINING IF THE SENTENCING COURT ABUSED ITS DISCRETION IN ITS EXTENT OF DEVIATION?
Id.
Since we accepted jurisdiction in this case, the legislature amended section 921.-001(5), Florida Statutes, to provide that “[t]he extent of departure from the guideline sentences shall not be subject to appellate review.” Ch. 86-273, § 1, Laws of Fla. (1987). We do not reach the issue of whether the legislature constitutionally can restrict appellate review of sentences nor the issue presented in the certified question because we cannot agree with the district court that there was any valid reason for a departure sentence in this case.
The lone reason determined to be valid by the district court was that the victim had suffered emotional trauma as a result of the defendant’s actions:
In stating its reasons for departure, the trial court cited the traumatic nature of the offense and the incalculable impact upon the victim. This reason has in itself been deemed by this court to be a valid reason for departure. Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984).
It is amply evident that the trial court’s main concern in its departure from the guidelines was the psychological trauma inflicted upon the victim and his family.
476 So. 2d at 1349.
Subsequent to the district court’s decision below, this Court has held that emotional and psychological trauma suffered by the victim cannot justify a departure sentence when it is the type of trauma that is inherent in the crime in question. State v. Cote, 487 So. 2d 1039 (Fla. 1986) (aggravated assault); Lerma v. State, 497 So. 2d 736 (Fla.1986) (sexual battery); State v. Rousseau, 509 So. 2d 281 (Fla.1987) (burglary).
We find that some degree of psychological and/or emotional trauma is always present as a consequence of a kidnapping. In this case, there is no evidence in the record of “extraordinary circumstances clearly not inherent in the crime charged” which would justify a departure. See Rousseau.
Accordingly, we quash the decision of the district court and remand for the imposition of a guidelines sentence.
It is so ordered.
McDonald, C.J., and OVERTON, EHRLICH, SHAW, GRIMES and KOGAN, JJ., concur. BARKETT, J., specially concurs with an opinion.
*
The information charged Ochoa with abduction "with intent to hold the [victim] for ransom or reward.” See § 787.01(l)(a)l, Fla.Stat. (1985).
BARKETT, Justice,
specially concurring.
I agree with the majority opinion with the caveat expressed in my specially concurring opinion in State v. Rousseau, 509 So. 2d 281 (Fla.1987).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nixon v. State, 572 So. 2d 1336 (Fla. 1990)…t after being abducted, Ms. Bickner was tied to a tree and terrorized before being burnt alive. These are extraordinary circumstances causing emotional trauma which are clearly not inherent in the crimes of kidnapping or robbery. Cf. Ochoa v. State, 509 So. 2d 1115 (Fla.1987) (emotional trauma not clear and convincing reason for departure where there were no “extraordinary circumstances” clearly not inherent in the crime of kidnapping causing the trauma). Reason 2 (escalating pattern of criminal conduct) is a…
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Dilar S. Booker v. State, 514 So. 2d 1079 (Fla. 1987)…a valid reasons for departure). The question certified to us by the Second District Court of Appeal in this case was previously certified by that court in Ochoa v. State, 476 So. 2d 1348 (Fla. 2d DCA 1985). In our decision in Ochoa (Ochoa v. State, 509 So. 2d 1115 (Fla.1987)), we did not address the certified question. After accepting jurisdiction in both Ochoa and the case sub judice, the legislature amended section 921.001(5), Florida Statutes, to provide that “[t]he extent of departure from a guideline sen…
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Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988)…t a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure. In Ochoa v. State, 509 So. 2d 1115 (Fla.1987), the court noted the 1986 amendment, but stated that it did not reach the issue of whether the legislature can constitutionally “restrict appellate review of sentences” because it found no valid reason for departure in that case. In Griff…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984)
- Ochoa v. State, 476 So. 2d 1348 (Fla. 2d DCA 1985)