OSCAR KAY CARTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On remand from a prior appeal, the trial court imposed departure sentences based on psychological trauma to victims and their mothers. The appellate court vacated the sentences, holding that psychological trauma inherent in sexual battery crimes cannot justify departure, and trauma to parents does not constitute an extraordinary circumstance warranting departure under the sentencing guidelines.
Psychological trauma inherent in the crime of sexual battery cannot justify departure because such trauma is an inherent element already factored into the guidelines. Emotional hardship to parents, while understandable, does not flow from an extraordinary circumstance and therefore does not justify departure.
[1] Psychological trauma to a victim in a sexual battery case cannot justify departure from sentencing guidelines because such trauma is inherent in the crime.
[2] Emotional hardship or trauma to a victim may justify a departure sentence if it arises from extraordinary circumstances not inherent in the crime charged.
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Join FLexlaw to unlock all legal intelligence“psychological trauma to the victim in a sexual battery case cannot justify departure because that trauma is inherent in the crime and has thus been factored into the guidelines”
Establishes the core principle that inherent trauma cannot justify sentencing departure
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Join FLexlaw to unlock all legal intelligenceCarter was convicted of four counts of attempted sexual battery and one count of lewd and lascivious acts involving young children. On remand, the tri…
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ORFINGER, Judge.
This is the second appearance of this case before this court.1 On remand, the trial court entered identical sentences on the four counts of attempted sexual battery and the one count of lewd and lascivious acts, giving as reasons for departure, 1) that the three young victims have been psychologically traumatized by the offenses and 2) that the mothers of the young children have been traumatized by the offenses. In so departing, the trial court relied on our decision in Lerma v. State, 476 So. 2d 275 (Fla. 5th DCA 1985) and on the cases of Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986) and Brooks v. State, 487 So. 2d 68 (Fla. 1st DCA 1986).
The supreme court reversed our Lerma decision on a holding that psychological trauma to the victim in a sexual battery case cannot justify departure because that trauma is inherent in the crime and has thus been factored into the guidelines. Lerma v. State, 497 So. 2d 736 (Fla.1986). Casteel was also reversed, Casteel v. State, 498 So. 2d 1249 (Fla.1986), but in doing so the supreme court clarified Lerma to the extent that emotional hardship or trauma to a victim which arises from extraordinary circumstances not inherent in the crime charged may justify a departure sentence. There, the extraordinary circumstance was the fact that the sexual battery took place in the presence of the victim’s young son who was traumatized by witnessing the attack, as was the victim because she knew her son was present. This particular circumstance was not inherent in the crime. The continued validity of Brooks, the third case relied on by the trial court, wherein departure was upheld because of psychological trauma to the victims caused by their presence in their home during the burglary, is questionable based on State v. Rousseau, 509 So. 2d 281 (Fla.1987) where the court held that the psychological trauma a victim of a burglary suffers when the sanctity of his or her home is violated is inherent in the crime of burglary and does not justify departure.
Based on these principles, the emotional hardship suffered by the mothers of these young victims, while understandable and predictable, does not, in this case, flow from any extraordinary circumstance other than the fact that their children were the victims, and will not justify departure.
Because none of the grounds for departure are valid, we must vacate the sentences and remand for resentencing under the guidelines. Based on the recent decision in Shull v. Dugger, 515 So. 2d 748 (Fla.1987), no new grounds for departure may be advanced. We must also note that based on Miller v. State, — U.S.—, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) the guidelines which must be followed in determining the appropriate sentences are those which were in effect when the crimes here were committed.
Sentences VACATED, REMANDED.
DAUKSCH and COWART, JJ., concur. . See Carter v. State, 483 So. 2d 740 (Fla. 5th DCA 1986) where we held that the five separate sentences were departure sentences for which written reasons must be supplied.
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Harris v. State, 566 So. 2d 823 (Fla. 5th DCA 1990)…se because it is an inherent component of the offense and also because it is a common and expected result of this type of offense. See State v. Jaggers, 526 So. 2d 682 (Fla.1988); Barrentine v. State, 521 So. 2d 1093 (Fla.1988); and Carter v. State, 516 So. 2d 1142 (Fla. 5th DCA 1987). See also State v. Rousseau, 509 So. 2d 281 (Fla.1987); Lerma v. State, 497 So. 2d 736 (Fla.1986). The remaining reasons given for departure refer to other criminal acts of child abuse for which convictions have not been obtaine…
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Reimel v. State, 532 So. 2d 16 (Fla. 5th DCA 1988)…nt the time frame between the act of the victim and the response of the defendant as being an act without premeditated design. Because no valid reasons were stated for departure, we remand for resentencing under the guidelines.3 See Carter v. State, 516 So. 2d 1142 (Fla. 5th DCA 1987). The final judgment of conviction is accordingly affirmed, but the sentence under review is reversed and the cause is remanded to the trial court with directions to re-sentence defendant within the sentencing guidelines. AFFIRM…
Authorities Cited
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- Casteel v. State, 498 So. 2d 1249 (Fla. 1986)
- Cunningham v. State, 481 So. 2d 72 (Fla. 4th DCA 1985)
- Carter v. State, 483 So. 2d 740 (Fla. 5th DCA 1986)
- Lerma v. State, 476 So. 2d 275 (Fla. 5th DCA 1985)
- Brooks v. State, 487 So. 2d 68 (Fla. 1st DCA 1986)