RAUL RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1989-08-11
No. 88-00281
FRANK, A.C.J., and HALL, J., concur.
547 So. 2d 708 Florida District Court of Appeal, Second District (1989) Negative Treatment
Cited by 6 cases

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Holding

The court held that while convictions are affirmed, the case must be remanded for resentencing because the trial court relied on both valid and invalid reasons for departing from the sentencing guidelines.


Headnotes

[1] Abuse of familial authority is a valid reason for departure from a sentencing guidelines sentence.

[2] Threats made by a defendant to victims or witnesses can be a valid reason for departure from a sentencing guidelines sentence.

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Facts & Procedural History

The defendant was convicted of battery and lewd assault in the presence of a child. The trial court departed upward from the recommended sentencing gu…

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Opinion of the Court
PARKER, Judge.

PARKER, Judge.

Raul Rodriguez appeals a judgment wherein he was adjudicated guilty of one count of battery and two counts of lewd assault in the presence of a child under the age of sixteen years and the resulting sentences. We affirm the convictions but remand for resentencing.

Rodriguez raises two issues on appeal; however, we find merit in the sentencing issue only and decline to discuss the other issue. Although the recommended guidelines sentence was three and one-half to four and one-half years’ imprisonment, the trial court departed upward and sentenced Rodriguez to fifteen years. The trial court cited four reasons to support the departure sentence. A discussion of each reason follows.

USE OF FAMILIAL AUTHORITY TO ABUSE THE CHILDREN

The abuse of familial authority is a valid reason for departure. Davis v. State, 517 So. 2d 670, 673-74 (Fla.1987) (abuse of the trust of a family relationship may justify departure); Jakubowski v. State, 494 So. 2d 277, 279 (Fla. 2d DCA 1986) (abuse of position of trust might be valid if sufficiently articulated); Williams v. State, 462 So. 2d 36, 37 (Fla. 1st DCA 1984), review denied, 471 So. 2d 44 (Fla. 1985) (abuse of familial authority is valid reason for departure). Further, this reason is supported by the evidence. Rodriguez was the de facto stepfather of the children. They called him “papa,” and he shared their mother’s bedroom with her. The mother worked nights, and the children were in Rodriguez’s care, custody, and control. Rodriguez’s position of authority over the victims facilitated the commission of the crimes.

THREATS MADE TO VICTIMS TO CONCEAL THE CRIMES

The first and third district -courts have held that threats made by the defendant to victims or witnesses is a valid reason for departure. See Walker v. State, 496 So. 2d 220, 221 (Fla. 3d DCA 1986); Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984), review denied, 471 So. 2d 44 (Fla.1985). The record in this case supports the finding that Rodriguez threatened both child victims. Both children testified that Rodriguez threatened them if they ever told anyone about his lewd behavior. PSYCHOLOGICAL TRAUMA

Psychological trauma may be a valid reason for departure if the trauma arises from extraordinary circumstances which are not inherent in the offense or when the victim has a discernible physical manifestation resulting from the trauma. State v. Rousseau, 509 So. 2d 281 (Fla. 1987). In this case, the record does not support a finding of psychological trauma. The only evidence of psychological trauma was the testimony of the mother that the girl victim began to daydream and to act aggressively toward her brother. While we have some indication in the record that the presentence investigation contained information that both children were undergoing counseling and that the girl would require long-term psychological treatment, the presentence investigation report was not made a part of the record on appeal.

TENDER AGES OF THE VICTIMS

The victims’ 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 921.001(5), Florida Statutes (1987),* this court must utilize the standard set forth in Albritton v. State, 476 So. 2d 158 (Fla. 1985). See State v. McGriff, 537 So. 2d 107 (Fla.1989). In Albritton, the supreme court held that when reviewing a departure sentence based on both valid and invalid reasons, the appellate court must remand the case for resentencing unless the state shows beyond a reasonable doubt that the trial court would have imposed the same sentence absent the invalid reasons. Albritton, 476 So. 2d at 160. In this case, the state failed to carry this burden; accordingly, this case must be remanded for re-sentencing. The fact that the trial judge stated that each of the reasons would support the sentence imposed is insufficient. See Griffis v. State, 509 So. 2d 1104 (Fla. 1987).

Judgment affirmed. Remanded for re-sentencing.

FRANK, A.C.J., and HALL, J., concur. *

Section 921.001(5), Florida Statutes (1987), in relevant part, provides: "When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure."


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Citator

Cited By

  • Crawford v. State, 549 So. 2d 1145 (Fla. 3d DCA 1989)
    …but rather, to Albritton v. State, 476 So. 2d 158 (Fla.1985) for the standard which we must apply when reviewing a departure order containing both proper and improper [*1147] reasons. State v. McGriff, 537 So. 2d 107 (Fla.1989); Rodriguez v. State, 547 So. 2d 708 (Fla. 2d DCA 1989). Under Albritton, the ease must be remanded for resentencing unless the record demonstrates, beyond a reasonable doubt, that the absence of the invalid reason would not have affected the sentence. Williams v. State, 544 So. 2d 112…
  • Pinder v. State, 591 So. 2d 1149 (Fla. 3d DCA 1992)
    …Dixon v. State, 513 So. 2d 1378 (Fla. 3d DCA 1987), such was not the reason given here. Threatening a victim subsequent to the offense is a proper departure reason. Walker v. State, 496 So. 2d 220 (Fla. 3d DCA 1986). See Rodri [*1150] guez v. State, 547 So. 2d 708 (Fla. 2d DCA 1989); Knotts v. State, 538 So. 2d 826 (Fla. 1st DCA 1988). Second, defendant claims that since threatening or shooting at a witness is a statutory violation of which he was not convicted, § 914.22, Fla.Stat. (1989), the departure sen…
  • Paris D. Varner v. State, 597 So. 2d 426 (Fla. 2d DCA 1992)
    …ffense for which Varner has not been convicted. Fla.R.Crim.P. 3.701(d)(ll); Allen v. State, 479 So. 2d 257 (Fla. 2d DCA 1985); Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985). We recognize that we have held to the contrary in Rodriguez v. State, 547 So. 2d 708 (Fla. 2d DCA 1989), and Boomer v. State, 564 So. 2d 1232 (Fla. 2d DCA 1990), and we recede from those cases to the extent they conflict with our opinion herein. In addition, we certify conflict with the First, Third, and Fourth Districts on this iss…

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