RICHARD M. BOOMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Boomer appeals his convictions for sexual battery and related crimes against children. The court affirms the convictions but reverses the departure sentences as improper under sentencing guidelines, remanding for resentencing within the guidelines.
The convictions are affirmed, but the 30-year and 15-year consecutive sentences constitute improper departures from the guidelines. Only the threats to victims constituted a valid reason for departure, but the state failed to show beyond a reasonable doubt that the trial court would have departed solely on that basis. The case is remanded for resentencing within the guidelines.
[1] Psychological injury to a victim is an improper reason for departure from sentencing guidelines absent a physical manifestation of that injury.
[2] A defendant's lack of remorse is an improper reason for departure from sentencing guidelines.
Previewing 2 of 5 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“Absent physical manifestation, which was not present in this case, psychological injury to the victim is an improper reason for departure.”
Establishes that psychological trauma alone cannot justify sentencing departure
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Join FLexlaw to unlock all legal intelligenceBoomer was convicted of sexual battery on a child under 12, attempted sexual battery on a child under 12, unnatural and lascivious acts on a child und…
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FRANK, Judge.
We affirm Richard Boomer’s convictions for sexual battery on a child under 12, attempted sexual battery on a child under 12, unnatural and lascivious act on a child under 12, and lewd assault on a child. Pursuant to the pertinent statute’s mandate, Boomer was sentenced to life imprisonment for the sexual battery count. § 775.082(1), Fla.Stat. (1987). The attempted sexual battery resulted in Boomer being sentenced to thirty years, and for the lewd assault he was sentenced to a consecutive fifteen years, each such sentence to run consecutively to the life sentence. Boomer was sentenced to sixty days for the unnatural and lascivious acts to run concurrently with the life sentence.
The thirty-year and fifteen-year consecutive sentences constitute improper departure from the guidelines. The bases for the trial court’s departure was Boomer’s lack of remorse, the vulnerability of the children, and the emotional trauma to the victims. Absent physical manifestation, which was not present in this case, psychological injury to the victim is an improper reason for departure. See State v. Rousseau, 509 So. 2d 281 (Fla.1987).
Lack of remorse is similarly improper. Mischler v. State, 488 So. 2d 523 (Fla.1986).
The departure element of vulnerability was based upon the fact that the victims were children. Victim age, however, is an essential element of Boomer’s crimes and the circumstances present in this matter do not fall within an exception permitting departure for a reason inherent in the crime, such as was found in Jakubowski v. State, 494 So. 2d 277 (Fla. 2d DCA 1986), where the defendant stood “in a position of trust, for example, in loco parentis.” As heinous as Boomer’s conduct was, his relationship with the victims was not such as to allow departure. He was the friend of a stepparent who used poor judgment in associating with Boomer, thus permitting him the opportunity to engage in the criminal behavior. The only arguably valid reason for departure identified by the trial court was Boomer’s threats to the victims which are supported in the record. See Walker v. State, 496 So. 2d 220 (Fla. 3d DCA 1986).
Boomer, however, was sentenced when Albritton v. State, 476 So. 2d 158 (Fla.1985), defined the standard for appellate review of departure sentences, and the state has not shown beyond a reasonable doubt that the trial court would have departed solely on the basis of the one valid reason.
Therefore, the case is remanded and Boomer is to be sentenced within the guidelines for Count II in Case No. CF87-1107A1-XX and for Count I in Case No. CF87-1147A1-XX.
RYDER, A.C.J., and DANAHY, J., concur.
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Boomer v. State, 596 So. 2d 730 (Fla. 2d DCA 1992)…The appellant claims that the trial court improperly imposed an upward departure sentence upon him on remand by this court for resentencing within the guidelines. We hold that the sentence is not an upward departure and affirm. In Boomer v. State, 564 So. 2d 1232 (Fla. 2d DCA 1990), this court affirmed the appellant’s convictions and his sentence of life imprisonment on one count of sexual battery on a child under the age of twelve. We found that consecutive sentences of thirty years and fifteen years on two…
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Paris D. Varner v. State, 597 So. 2d 426 (Fla. 2d DCA 1992)…im.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 issue. Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984),…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- House OF Prayer OF Apostolic Faith, Inc. v. Watson, 496 So. 2d 220 (Fla. 3d DCA 1986)
- Jakubowski v. State, 494 So. 2d 277 (Fla. 2d DCA 1986)