MARTIN LUTHER HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harris was convicted of lewd assault upon a child and attempted lewd assault upon a child. The trial court imposed a departure sentence above the guidelines, but the appellate court vacated the sentence because the reasons given for departure were either legally insufficient or unsupported by the record.
The departure sentence was improper because all reasons cited by the trial court were either legally insufficient or unsupported. Age of victim, oral and anal penetration, and emotional trauma are inherent components of the crime; abuse of a position of trust is too common in such offenses to justify departure; and uncharged criminal acts cannot support a departure sentence.
[1] The age of a victim is an inherent component of the crime of lewd assault on a child and cannot support a departure sentence.
[2] Abuse of a position of trust does not support a departure sentence for lewd assault on a child as such abuse is commonly performed by those who take advantage of a trust…
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Join FLexlaw to unlock all legal intelligence“The age of the victim is an inherent component of the crime of lewd assault on a child.”
Establishes that victim's age cannot be used as an aggravating factor for departure since it is already part of the crime definition.
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Join FLexlaw to unlock all legal intelligenceHarris was adjudicated guilty of lewd assault upon a child and attempted lewd assault upon a child involving a five-year-old victim. The trial court i…
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PER CURIAM.
This is another sentencing departure case.
The defendant was adjudicated guilty of a lewd assault upon a child1 and attempted lewd assault upon a child2 and the trial court imposed a departure sentence. However, the reasons given for departure have either been held insufficient or are not supported by the record.
The age of the victim is an inherent component of the crime of lewd assault on a child. See Graham v. State, 557 So. 2d 669 (Fla. 5th DCA 1990); Rozar v. State, 500 So. 2d 659 (Fla. 5th DCA 1986); Dowling v. State, 495 So. 2d 874 (Fla. 5th DCA 1986).
Abuse of a position of trust does not support a departure sentence imposed for a lewd assault upon a child because such abuse is so commonly performed by persons who take advantage of a trust position. See Graham v. State, 557 So. 2d 669 (Fla. 5th DCA 1990); Laberge v. State, 508 So. 2d 416 (Fla. 5th DCA 1987). See also Hall v. State, 517 So. 2d 692 (Fla.1988); Harper v. State, 521 So. 2d 163 (Fla. 5th DCA 1988). Further, a “position of trust” as it relates to a child is the crux of the separate crime of “sexual activity” with a child by one in a position of familial or custodial authority to the child which is proscribed by section 794.041, Florida Statutes, and the defendant was not convicted of that offense.
The oral and anal penetration of the five year old victim, is likewise invalid. Lewd assault on a child (section 800.04, Florida Statutes) now includes any act defined as sexual battery under section 794.-011(l)(h) upon any child under the age of 16 years. Oral and anal penetration, then, is an inherent component of the offense.
Emotional or psychological trauma is not a valid reason supporting departure in this case 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 obtained and therefore cannot be used to support a departure sentence. See Fla.R.Crim.P. 3.701(d)(11); Rozar v. State, 500 So. 2d 659 (Fla. 5th DCA 1986); Dowling v. State, 495 So. 2d 874 (Fla. 5th DCA 1986).
The departure sentence is vacated and the cause remanded for entry of a guidelines sentence. See Pope v. State, 561 So. 2d 554 (Fla.1990).
SENTENCED VACATED; CAUSE REMANDED.
DANIEL, C.J., and W. SHARP and COWART, JJ., concur. . Section 800.04, Florida Statutes.
. Sections 777.04; 800.04, Florida Statutes.
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Jory v. State, 647 So. 2d 152 (Fla. 5th DCA 1994)…rcumstances are apparent. The child victim was neither brutalized nor physically injured. The age of the victim and the various sex acts depicted are essential components of the crimes for which Jory was convicted and sentenced. See Harris v. State, 566 So. 2d 823 (Fla. 5th DCA 1990). Florida’s sexual battery laws are gender-neutral. As such, courts should apply them equally and fairly to all defendants, however distasteful a defendant’s life-style may be to a particular judge or panel of judges. This is dif…
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Brawn v. State, 582 So. 2d 50 (Fla. 5th DCA 1991)…rized the state’s evidence which proved that Brawn committed grand theft. These factors are inherent in the nature of grand theft and may not be used to support a departure sentence. See State v. Fletcher, 530 So. 2d 296 (Fla.1988); Harris v. State, 566 So. 2d 823 (Fla. 5th DCA 1990); Collins v. State, 535 So. 2d 661 (Fla. 3d DCA 1988); Cabrera-Sarmiento v. State, 522 So. 2d 1080 (Fla. 5th DCA 1988); Crosby v. State, 518 So. 2d 477 (Fla. 5th DCA 1988). Secondly, the trial court stated that when Brawn testifi…
Authorities Cited (12 total)
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- J.I. Case Co. v. Henley, 517 So. 2d 692 (Fla. 1988)
- Laberge v. State, 508 So. 2d 416 (Fla. 5th DCA 1987)
- State v. Jaggers, 526 So. 2d 682 (Fla. 1988)
- Dowling v. State, 495 So. 2d 874 (Fla. 5th DCA 1986)
- Graham v. State, 557 So. 2d 669 (Fla. 5th DCA 1990)
- Barrentine v. State, 521 So. 2d 1093 (Fla. 1988)
- Carter v. State, 516 So. 2d 1142 (Fla. 5th DCA 1987)