JAMES EDWARD TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed a departure sentence of four and one-half years for sexual abuse of a child, finding that the defendant's abuse of familial authority and trust constituted a valid reason for departure from sentencing guidelines.
A trial judge may depart upward from sentencing guidelines when the defendant abuses a position of familial authority and trust over the victim.
[1] A defendant's abuse of a position of familial authority and trust over a victim constitutes a valid reason for upward departure from sentencing guidelines in sexual abuse…
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to committing a lewd and lascivious act upon his fifteen-year-old daughter in violation of Florida Statutes section 800.04. T…
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WIGGINTON, Judge.
Appellant seeks review of his departure sentence upon his conviction, after entry of a guilty plea, of the second degree felony of committing a lewd and lascivious act upon a child, his fifteen year old daughter, in violation of section 800.04, Florida Statutes. We affirm.
The guidelines scoresheet resulted in a recommended sentence of community control or twelve to thirty months’ incarceration. However, the trial judge departed from that recommendation and sentenced appellant to four and one-half years in prison, based upon three written reasons, two of which we have determined were not clear and convincing. However, the third reason — the fact that the defendant took advantage of his position of familial authority and trust over the victim, his daughter — is a valid reason for departure. Jefferson v. State, 489 So. 2d 860 (Fla. 1st DCA 1986); Stewart v. State, 489 So. 2d 176 (Fla. 1st DCA 1986); Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984). Under the circumstances of this case and considering the overpowering nature of the valid reason for departure, we are convinced that the trial judge would have imposed the same departure sentence based only upon that appropriate reason. Therefore, we affirm.
WENTWORTH and NIMMONS, JJ., concur.
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Barnes v. State, 562 So. 2d 729 (Fla. 3d DCA 1990)…2d 877 (Fla.1982) (a request is necessary in order to preserve for appellate review the right to receive an [*730] instruction). Also, defendant used familial trust to effectuate the crime, thus justifying a departure sentence. See Turner v. State, 510 So. 2d 920 (Fla. 1st DCA 1987). Accordingly, defendant’s conviction for unlawful possession of a firearm while engaged in a criminal offense is reversed and his sentence as to that conviction is vacated. Defendant’s conviction and sentence for attempted murd…
Authorities Cited
- Purvis Lee Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984)
- Stewart v. State, 489 So. 2d 176 (Fla. 1st DCA 1986)
- Jefferson v. State, 489 So. 2d 860 (Fla. 1st DCA 1986)