JIMMY LEE MOLDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jimmy Lee Molden appealed his upward departure sentence of 15 years for sexual battery, arguing that the trial court improperly imposed a sentence above the guideline range of 7-9 years. The appellate court reversed and remanded because the two stated reasons for departure—the victim's tender age and abuse of familial-custodial relationship—were legally invalid.
The appellate court reversed the departure sentence because both stated reasons were legally invalid: the victim's age is an inherent component of the sexual battery statute and cannot support departure, and the abuse of familial-custodial relationship cannot be used as a departure reason where that count was not prosecuted.
[1] A victim's age, even at the lower end of the statutory range for a sexual offense, is an inherent component of the offense and cannot serve as a basis for an upward depar…
[2] Reasons for deviating from sentencing guidelines shall not include factors relating to instant offenses for which convictions have not been obtained.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the age of a victim — even at the bottom of the age range (12 years) contemplated under Section 794.011(5) — must be regarded as an inherent component of a violation of such section”
Establishes that victim age cannot support upward departure because it is a statutory element
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Join FLexlaw to unlock all legal intelligenceMolden was originally charged with two counts involving sexual activity with a child victim: engaging in sexual activity with a minor in a position of…
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NIMMONS, Judge.
Molden appeals from his upward departure sentence. We reverse and remand for the imposition of a new sentence within the applicable guidelines range.
The defendant was originally charged in a two-count information with: (1) engaging in sexual activity with a child 12 years of age or older, but less than 18 years of age, with whom the defendant stood in a position of familial or custodial authority, contrary to Section 794.041, Florida Statutes (1984 Supp.) and (2) sexual battery upon a person 12 years of age or older, without such person’s consent, and in the process used physical force and violence not likely to cause serious personal injury, contrary to Section 794.011(5), Florida Statutes (1984 Supp.). The same victim was involved in both counts.
Pursuant to a plea agreement, the defendant entered a plea of nolo contendere to the count two charge in exchange for the state’s nolle prosequi of the first count. The guidelines sentence range was 7-9 years. The court imposed a departure sentence of 15 years imprisonment, giving as written reasons therefor: (1) “tender age of victim at time of offense;” and (2) “crime involved gross abuse of the familial-custodial relationship, that being the defendant is the natural father of the victim.”
We cannot approve the first reason for departure because under pertinent decisions of the Florida Supreme Court, the age of a victim — even at the bottom of the age range (12 years) contemplated under Section 794.011(5) — must be regarded as an inherent component of a violation of such section. See Atwaters v. State, 519 So. 2d 611 (Fla.1988); McGouirk v. State, 493 So. 2d 1016 (Fla.1986).
The second departure reason is also invalid under Florida Rules of Criminal Procedure 3.701(d)(ll) which provides in relevant part:
Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.
Although in some instances an abuse of familial/custodial authority may be deemed to be a valid departure reason, see e.g., Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984), review denied, 471 So. 2d 44 (Fla.1985), this reason must be disallowed in the instant case. The “familial authority” count under Section 794.041 was, as noted above, dropped by the state.
Accordingly, the sentence is REVERSED and the cause is REMANDED for imposition of sentence within the guidelines range.
THOMPSON and BARFIELD, JJ„ concur.
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Graham v. State, 557 So. 2d 669 (Fla. 5th DCA 1990)…victim, M.K, to wit: eight (8) years, and the fact that said child was vulnerable because of her age. This is not a proper reason for departure since the age of the victim is itself an inherent component of the offense charged. See Molden v. State, 530 So. 2d 1000 (Fla. 1st DCA 1988). See also § 800.04, Fla.Stat. (1987). 3. The victim M.K. was vulnerable because she was at home asleep when the defendant approached her to commit the offense. This is also not a valid reason for departure. See Williams v. Stat…
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Rodriguez v. State, 547 So. 2d 708 (Fla. 2d DCA 1989)…tender ages is an invalid reason because the ages of the victims are inherent in the offense of lewd assault in the presence of a child under the age of sixteen years. See Jakubowski v. State, 494 So. 2d 277, 279 (Fla. 2d DCA 1986); Molden v. State, 530 So. 2d 1000, 1001 (Fla. 1st DCA 1988); Leon v. State, 498 So. 2d 680, 682 (Fla. 3d DCA 1986). The trial court relied upon both valid and invalid reasons to support the departure sentence. Because these crimes occurred prior to the effective date of section 921…
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Sitar v. State, 548 So. 2d 1115 (Fla. 1989)…KOGAN, Judge. We have for review Sitar v. State, 530 So. 2d 1000 (Fla. 4th DCA 1988), based on express and direct conflict with State v. McGriff, 537 So. 2d 107 (Fla.1989). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The district court in this case directly relied on its prior opinion in Abt v. State, 52…
Authorities Cited
- Atwaters v. State, 519 So. 2d 611 (Fla. 1988)
- Purvis Lee Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984)
- McGOUIRK v. State, 493 So. 2d 1016 (Fla. 1986)