KENNETH RICHARD CUMBIE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Abuse of familial authority cannot be a clear and convincing reason for a departure sentence in attempted capital sexual battery cases.
The First District Court of Appeal certified a question regarding departure sentences for attempted capital sexual battery, similar to a question rece…
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PER CURIAM.
We have for review Cumbie v. State, 562 So. 2d 845 (Fla. 1st DCA 1990), which certified a question similar to one recently answered by this Court in Wilson v. State, 567 So. 2d 425 (Fla.1990):
Whether abuse of a position of familial authority over a victim may constitute a clear and convincing reason justifying the imposition of a departure sentence for a conviction of attempted capital sexual battery?
Cumbie, 562 So. 2d at 845. The court below erroneously stated that it had certified the same question in both cases. Id. The questions differed only in that Wilson dealt with lewd and lascivious assault on a child and the present case deals with capital sexual battery.
We believe this factual difference alone is not sufficient reason to require a different answer to the certified questions. Familial authority is not a necessary element of either lewd and lascivious assault on a child, or capital sexual battery. Thus, the factual difference between the questions in Wilson and the present case is essentially irrelevant. As we stated in Wilson, any act of child molestation involves an abuse of authority and breach of trust. A factor should not be approved as a valid reason for departure if it routinely will authorize departure sentences. Wilson; State v. Rousseau, 509 So. 2d 281, 284 (Fla.1987). Accordingly, we answer the question in the negative, quash the opinion under review, and remand for further proceedings in keeping with our opinion in Wilson.
It is so ordered.
SHAW, C.J-., and OVERTON, McDonald, ehrlich, barkett, GRIMES and KOGAN, JJ., concur.
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Cumbie v. State, 597 So. 2d 946 (Fla. 1st DCA 1992)…er the reason used by the trial court to justify the departure sentence was legally sufficient. The Supreme Court answered the certified question in the negative, and again vacated appellant’s sentence and remanded for resentencing. Cumbie v. State, 574 So. 2d 1074 (Fla.1991). On this appeal from appellant’s latest resentencing, appellant’s appointed counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which she states that, other than minor sente…
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State v. Generazio, 691 So. 2d 609 (Fla. 4th DCA 1997)….Crim.P. 3.191(i). However, the trial court erred when it departed from the sentencing guidelines. The state concedes and we agree that the first reason stated by the trial court, “abuse of a familial authority,” does not apply. See Cumbie v. State, 574 So. 2d 1074 (Fla.1991); Wilson v. State, 567 So. 2d 425 (Fla.1990). We also hold that the record does not support the trial court’s second reason for departing from the guidelines. Although the victim had emotional and mental problems, the record does not show…
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Taccariello v. State, 664 So. 2d 1118 (Fla. 4th DCA 1995)…t justify departure since it is an inherent component of that crime. Likewise, gaining a position of trust would be common to most organized schemes to defraud and thus would not constitute a valid reason for departure. As stated in Cumbie v. State, 574 So. 2d 1074 (Fla.1991), a factor should not be approved as a valid reason for departure if it routinely will authorize departure sentences. The majority cites to Byrd v. State, 516 So. 2d 107 (Fla. 4th DCA 1987), as providing [*1123] authority for departure ba…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Wilson v. State, 567 So. 2d 425 (Fla. 1990)
- Cumbie v. State, 562 So. 2d 845 (Fla. 1st DCA 1990)