JAMES JUNIOR BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Brown appeals his convictions and sentences for burglary with assault, sexual battery and aggravated battery. We affirm the convictions but, because the reason given for imposing a departure sentence is invalid, we remand for resentencing.
Brown’s argument that his sentencing guidelines scoresheet improperly assessed 85 points for severe victim injury is without merit. However, we agree with his contention that no valid reason was given for imposition of a departure sentence. The trial court’s stated reason for departure was the fact that Brown entered the victim’s home in the middle of the night while she was sleeping and thus was vulnerable and unable to defend herself. This is not a valid reason for departure. Brown therefore must be resentenced within the guidelines. Williams v. State, 492 So. 2d 1308 (Fla.1986).
Reversed and remanded for resentencing.
WENTWORTH and THOMPSON, JJ., concur. BOOTH, J., dissents.
BOOTH, J.,
dissenting.
I would affirm the sentences imposed and hold valid the reasons given by the trial court for departure.
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Graham v. State, 557 So. 2d 669 (Fla. 5th DCA 1990)…the defendant stabbed the victim while she was sleeping and therefore more vulnerable. This factor alone is not a clear and convincing reason to depart. 492 So. 2d at 1309. See also Grant v. State, 547 So. 2d 952 (Fla. 3d DCA 1989); Brown v. State, 511 So. 2d 719 (Fla. 1st DCA 1987). 4. The victim M.K. was vulnerable because the defendant stood in a position of trust as baby-sitter to the victim, which position the defendant abused in committing the instant offenses. This court, in Laberge v. State, 508 So…
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Duncan v. State, 532 So. 2d 674 (Fla. 1st DCA 1988)…First, the fact that appellant entered the victims’ homes is an inherent component of the offense of burglary of a dwelling and, as such, may not be used as a reason for departure. Scurry v. State, 489 So. 2d 25 (Fla.1986). See also Brown v. State, 511 So. 2d 719 (Fla. 1st DCA 1987), and Williams v. State, 492 So. 2d 1308 (Fla.1986) (the fact that defendant entered the victim’s home at night while the victim was sleeping and, thus, vulnerable, was not a valid reason for departure). Second, attempted sexual b…
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Padgett v. State, 537 So. 2d 677 (Fla. 3d DCA 1989)…PER CURIAM. Affirmed. See Ferguson v. State, 519 So. 2d 747 (Fla. 4th DCA), aff’d, 538 So. 2d 763 (Fla.1988); Brown v. State, 511 So. 2d 719 (Fla. 1st DCA 1987); Johnson v. State, 509 So. 2d 1237 (Fla. 4th DCA 1987); Carter v. State, 468 So. 2d 370 (Fla. 1st DCA), review denied, 478 So. 2d 53 (Fla.1985).…
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- Williams v. State, 492 So. 2d 1308 (Fla. 1986)