ROBERT A. LETTMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Lettman was convicted of third-degree murder of his three-year-old daughter. The appellate court affirmed the conviction but reversed the sentence of fifteen years as exceeding the sentencing guidelines, finding the trial court's stated grounds for departure from the three-to-seven-year guideline range legally insufficient.
The appellate court affirmed the conviction but reversed the sentence and remanded for resentencing within the guidelines. The court held that none of the three stated reasons for departure constituted valid grounds under Florida law: abuse of familial trust alone is insufficient absent the most barbaric and grotesque circumstances; vulnerability or tender age of the victim alone cannot justify departure; and a pattern of abuse cannot support departure where the defendant has no prior convictions for child abuse.
[1] Abuse of a position of trust within a family relationship may justify departure from sentencing guidelines, but only under the most barbaric and grotesque circumstances.
[2] The vulnerability and tender age of a victim are insufficient as clear and convincing reasons for an upward departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“no particular trust bestowed on [the defendant] by the victim formed the foundation of the crime”
Establishes that abuse of familial trust alone cannot justify sentencing departure unless the trust was essential to committing the crime
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Join FLexlaw to unlock all legal intelligenceAppellant Lettman was convicted of third-degree murder of his three-year-old daughter, Taneshia. The trial court imposed a sentence of fifteen years, …
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HERSEY, Chief Judge.
Appellant was convicted of the third-degree murder of his daughter, Taneshia, a three-year-old child. We affirm the conviction, finding no merit in the arguments advanced for reversal.
The trial court departed from the sentencing guidelines (which established a range of three to seven years’ incarceration) and imposed a sentence of fifteen years, stating three grounds for departure. The first reason given was that appellant had abused a position of trust.
The Supreme Court of Florida addressed departure from the sentencing guidelines based on an abuse of trust of a family relationship in Davis v. State, 517 So. 2d 670 (Fla.1987), where a wife shot and killed her husband. The supreme court found that while abuse of trust of a family rela tionship may justify departure in some instances, it was insufficient to do so there, because “no particular trust bestowed on [the defendant] by the victim formed the foundation of the crime_” Id. at 674. The court distinguished cases where the crime committed was directly related to the trust conferred on the defendant and the trust was the factor that made possible the commission of the crime. The court also distinguished Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984), rev. denied, 471 So. 2d 44 (Fla.1985), where a stepfather used his “familial authority” to commit lewd and lascivious acts on his ten-year-old stepdaughter. Taking advantage of a position of family authority over the victim in that case was found to constitute a clear and convincing reason for departure. See also and compare Jakubowski v. State, 494 So. 2d 277 (Fla. 2d DCA 1986); Stewart v. State, 489 So. 2d 176 (Fla. 1st DCA 1986).
Most recently, in Hall v. State, 517 So. 2d 692 (Fla.1988), the supreme court reviewed a departure based, inter alia, on “a special position of trust within the family unit.” In Hall the parents beat their two children with a belt for the purpose of toilet training, starting at age one, each time the children urinated without telling their parents. The beatings occurred two to six times a day over a period of approximately five years. The supreme court held that use of familial authority was an invalid reason for departure, stating:
There are, of course, some cases of child abuse which occur outside the family unit. However, since the use of familial authority exists in so many child abuse cases, its adverse effect may have been taken into consideration in the setting of the guideline ranges for that offense. In any event, to permit a built-in basis for departure in so many child abuse cases would be contrary to the purpose and spirit of the sentencing guidelines.
Id. at 695. See also Eldridge v. State, 13 F.L.W. 1042 (Fla. 5th DCA Apr. 28, 1988). Departure based on abuse of familial trust is permissible, but as the supreme court has suggested, only under the most barbaric and grotesque circumstances. While the facts in the present case are shocking, they do not fit within the ambit of the cited cases.
The trial court’s second reason for departure was the vulnerability and tender age of the victim. This reason is invalid. Neither advanced age alone nor helplessness or vulnerability are sufficient as clear and convincing reasons for an upward departure from the guidelines. Byrd v. State, 516 So. 2d 107 (Fla. 4th DCA 1987).
The trial court’s third reason for departure was the pattern of abuse perpetrated on the victim. While an escalating pattern of criminal activity is a valid reason for departure from the guidelines when clearly supported by the facts, Booker v. State, 514 So. 2d 1079 (Fla.1987), a pattern of abuse or “punishment” as in this -case does not support departure. Rule 3.701(d)(ll), Florida Rules of Criminal Procedure, provides that “[r]easons for deviating from the guidelines shall not include factors relating to prior arrests without conviction.” Since appellant has not previously been convicted of child abuse, never having been charged, this cannot be used as a reason for departure.
Accordingly, we affirm the conviction but reverse the sentence and remand for resentencing within the guidelines.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
DELL and WALDEN, JJ., concur.
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Robinson v. State, 589 So. 2d 1372 (Fla. 4th DCA 1991)…the infant soiled its diapers & cried. This is a savage unmitigated beating to death of a 17 day old baby by the Def. Age-related vulnerability alone is an insufficient reason to depart. Wemett v. State, 567 So. 2d 882 (Fla.1990); Lettman v. State, 526 So. 2d 207 (Fla. 4th DCA 1988), rev. denied, 544 So. 2d 1025 (Fla.1989). However, the supreme court stated in Wemett that it might be possible for a trial court to combine age-related vulnerability with other substantial factors to establish a clear and convin…1 / 2
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Small v. State, 667 So. 2d 299 (Fla. 1st DCA 1995)…rder case that [A] trial court may validly depart from a recommended guidelines sentence when the conduct of the defendant is so extraordinary or egregious as to be beyond the ordinary case. 524 So. 2d at 665 (emphasis added). In Lettman v. State, 526 So. 2d 207 (Fla. 4th DCA 1988), rev. denied, 544 So. 2d 1025 (Fla.1989), the court reversed a departure sentence for third-degree murder of a three-year-old child by her father, stating, [Departure based on abuse of familial trust is permissible but, as sugge…1 / 3
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Gonzalez v. State, 624 So. 2d 300 (Fla. 4th DCA 1993)…any of its rulings on this issue. Finally, we do agree with appellant that the trial court erred in departing from the guidelines. See Robinson v. State, 589 So. 2d 1372 (Fla. 4th DCA1991), rev. denied, 599 So. 2d 1280 (Fla.1992); Lettman v. State, 526 So. 2d 207 (Fla. 4th DCA1988), rev. denied, 544 So. 2d 1025 (Fla.1989). ANSTEAD and KLEIN, JJ., concur. OWEN, WILLIAM C., Jr., Senior Judge, dissenting in part with opinion. . Notwithstanding the above, there seems to be continuing confusion within the dist…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dilar S. Booker v. State, 514 So. 2d 1079 (Fla. 1987)
- J.I. Case Co. v. Henley, 517 So. 2d 692 (Fla. 1988)
- Davis v. State, 517 So. 2d 670 (Fla. 1987)
- Purvis Lee Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984)
- Stewart v. State, 489 So. 2d 176 (Fla. 1st DCA 1986)
- Jakubowski v. State, 494 So. 2d 277 (Fla. 2d DCA 1986)
- Byrd v. State, 516 So. 2d 107 (Fla. 4th DCA 1987)