CHARLES PETER VANTASSELL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that a trial court's three stated reasons for departing from sentencing guidelines were invalid because they relied on factors already inherent in the offense, factors related to unconvicted offenses, or factors already accounted for in the guidelines score. The Court reversed and remanded for resentencing within the guidelines.
None of the three stated reasons for departure were valid. The Court held that factors already calculated in the guidelines, conduct related to offenses for which no conviction was obtained, and conduct inherent to the crime itself cannot support a departure from the guidelines sentence.
[1] Factors already taken into account in calculating the guidelines score cannot support a departure sentence.
[2] A trial court may not punish a defendant for offenses for which there were no convictions and no charges.
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Join FLexlaw to unlock all legal intelligence“Factors already taken into account in calculating the guidelines score cannot support a departure sentence”
Establishes the rule that the trial court cannot rely on factors already scored in the guidelines to justify departure.
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Join FLexlaw to unlock all legal intelligenceVanTassell was convicted of sexual battery on a child by a person in a position of familial authority. The trial judge departed from the nine-year max…
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BARKETT, Justice.
We have for review VanTassell v. State, 498 So. 2d 649 (Fla. 1st DCA 1986), in which the district court certified the following as a question of great public importance:
DOES A TRIAL COURT’S STATEMENT, MADE AT THE TIME OF DEPARTURE FROM THE SENTENCING GUIDELINES, THAT IT WOULD DEPART FOR ANY ONE OF THE REASONS GIVEN, REGARDLESS OF WHETHER BOTH VALID AND INVALID REASONS ARE FOUND ON REVIEW, SATISFY THE STANDARD SET FORTH IN ALBRITTON V. STATE?
Id. at 650. We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. We answered the certified question in the negative in Griffis v. State, 509 So. 2d 1104 (Fla.1987). The question is inapplicable in this case, however, because we find none of the enumerated reasons for departure valid. We therefore quash the decision of the district court with orders to remand to the trial court for resentencing in accordance with this opinion.
VanTassell was convicted of one count of sexual battery on a child over the age of eleven years by a person in a position of familial authority in violation of section 794.011(4)(e), Florida Statutes (1983). The trial judge departed from the maximum guidelines sentence of nine years and imposed a twenty-three-year sentence. The district court affirmed, finding valid the following three out of eight reasons for departure given by the trial court: (1) Van-Tassell’s use of excessive force resulted in the victim sustaining physical injuries; (2) VanTassell’s sexual abuse of the victim was an ongoing occurrence over the previous two years; (3) VanTassell’s conduct constituted flagrant disregard for the victim’s safety, welfare and personal rights. VanTassell, 498 So. 2d at 650.
Petitioner argues that none of these reasons are valid because they either consider factors that are inherent in the offense, factors related to offenses for which Van-Tassell was neither charged nor convicted, or factors already calculated into the guidelines sentence. We agree.
The first reason, that excessive force resulted in the victim sustaining extensive physical injuries, is invalid because the extent of injury was already calculated in the guidelines. Vanover v. State, 498 So. 2d 899, 901 (Fla.1986). Petitioner received forty points on his scoresheet for “penetration or slight injury” and points were not scored for serious injury. Factors already taken into account in calculating the guidelines score cannot support a departure sentence, Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
The second reason, the ongoing nature of the abuse, is invalid because it is based upon factors relating to the instant offense for which convictions were not obtained, contrary to Florida Rule of Criminal Procedure 3.701(d)(ll). .VanTassell was convicted of only one count of sexual battery which occurred on a specific date. The trial court may not punish him for other offenses for which there were no convictions and no charges. State v. Tyner, 506 So. 2d 405 (Fla.1987).
Reason three is likewise invalid. The crime of first-degree sexual battery always involves a flagrant disregard for the victim’s safety, welfare and personal rights. As an inherent component of the crime, it is not a proper reason for departure. State v. Mischler, 488 So. 2d 523, 525 (Fla.1986).
In summary, none of the trial court’s reasons for departure are valid. Accordingly, we quash the decision below and direct the district court to vacate the sentence and remand to the trial court for resentencing within the guidelines.
It is so ordered.
MCDONALD, C.J., and OVERTON, EHRLICH, SHAW, GRIMES and KOGAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Mathis v. State, 515 So. 2d 214 (Fla. 1987)…, 509 So. 2d at 283. The second reason, excessive use and threat of force, is not a valid reason for departure when the force used results in victim injury and the extent of injury already has been calculated in the guidelines. VanTassell v. State, 512 So. 2d 181 (Fla.1987); Vanover v. State, 498 So. 2d 899 (Fla.1986). In this case, however, there was no physical injury to any of the victims 2 nor do the facts support a finding of excessive use or threat of force. Petitioner’s actions in pointing a gun at th…
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Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988)…eneral rule, excessive use of force will not support departure when the force used resulted in victim injury and the extent of victim injury has been calculated in the guidelines. Mathis v. State, 515 So. 2d 214, 216 (Fla.1987); VanTassell v. State, 512 So. 2d 181, 183 (Fla.1987); Vanover v. State, 498 So. 2d 899, 901 (Fla.1986). On the other hand, although departure is precluded when predicated on a factor which has been scored, when the facts of the case permit, the trial court may base departure upon the…
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Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1987)…urt’s announcement that it would have departed for either of the reasons given, as it is apparent from the record that the court was more concerned with appellant’s status as an habitual offender than with his recent recidivism. VanTassell v. State, 512 So. 2d 181 (Fla.1987); Griffis v. State, 509 So. 2d 1104 (Fla.1987). Accordingly, this cause is REVERSED and REMANDED for resentencing in accordance with this opinion. BOOTH, WENTWORTH and THOMPSON, JJ., concur.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Griffis v. State, 509 So. 2d 1104 (Fla. 1987)
- Creed Martin Vanover v. State, 498 So. 2d 899 (Fla. 1986)
- State v. Tyner, 506 So. 2d 405 (Fla. 1987)
- VanTASSELL v. State, 498 So. 2d 649 (Fla. 1st DCA 1986)