JOSEPH BOOKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Booker appeals his conviction and sentence for sexual activity with a child and indecent assault, challenging the trial court's scoring of victim injury and upward departure from guidelines sentencing. The court affirmed the sentencing departure but reversed the multiple scoring of victim injury, requiring resentencing.
The trial court erred in scoring victim injury more than once per victim in a single criminal transaction or episode. However, the upward departure from guidelines was valid because the defendant's recent release from supervision (3.5 months prior) provided a sufficient and valid reason for departure, even though the rehabilitation/deterrence rationale was invalid.
[1] Victim injury points in sentencing guidelines may be scored only once for each victim injured during a single criminal transaction or episode.
[2] A prior conviction for sexual battery, standing alone, may be an insufficient reason to depart from recommended sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“This provision implements the intention of the commission that points for victim injury be added for each victim injured during a criminal transaction or episode.”
Legislature's clarification in 1987 amendment showing victim injury should be scored only once per victim, not multiple times
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Join FLexlaw to unlock all legal intelligenceBooker was convicted of two counts of sexual activity with a child and one count of indecent assault. The trial court scored victim injury three times…
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[*819] PER CURIAM.
Joseph Booker appeals from his conviction and sentence for two counts of sexual activity with a child and one count of indecent assault.
He urges that the trial court erred in scoring victim injury three times in his guidelines sentencing scoresheet. We agree. In 1987, the legislature amended Rule 3.701(d)(7), Florida Rules of Criminal Procedure, to state: “This provision implements the intention of the commission that points for victim injury be added for each victim injured during a criminal transaction or episode.” In Williams v. State, 565 So. 2d 838, 840 (Fla. 1st DCA 1990), the First District concluded that the amendment indicates that the legislature intended for victim injury to be scored only once for each victim in a single criminal transaction or episode. Accord Weekley v. State, 553 So. 2d 239, 240 (Fla. 3d DCA 1989). Thus, the trial court erred in scoring points for victim injury more than once.
Booker also claims that the trial court erred in departing from the recommended guidelines sentence. • The trial court departed for the following reasons:
1. The Defendant was convicted of Grand Theft in Austin, Texas, on February 7, 1986. He was paroled on May 15, 1986. The Defendant was recently released from supervision on February 1, 1988, or just three and one-half (3½) months from the date of the offenses at bar (May 15, 1988).
2. Further, the recommended sentence is inadequate for rehabilitation or deterrence based on the Defendant’s pri-or record, which includes a prior conviction for Sexual Battery.
The second reason is invalid. See Tillman v. State, 525 So. 2d 862 (Fla.1988); Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990). However, the first reason is valid, See Forney v. State, 567 So. 2d 60 (Fla. 4th DCA 1990); Barfield v. State, 564 So. 2d 616, 617 (Fla. 4th DCA 1990), and, standing alone, it is sufficient to justify the departure.
Thus, we affirm the upward departure from the sentencing guidelines.
We have examined the other points raised by Booker and have determined them to be without merit.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.
DELL, J., and WALDEN, JAMES H., Senior Judge, concur. ANSTEAD, J., concurs specially with opinion.
ANSTEAD, Judge,
concurring specially.
I agree with the majority opinion, including its conclusion that no reversible error has been demonstrated in the trial court’s admission of expert testimony. While I have serious concerns about the admissibility of expert opinion testimony on the so-called Child Sexual Abuse Accommodation Syndrome, I do not believe the appellant properly preserved this issue for review. For instance, on appeal the qualifications of the psychologist who offered testimony on the syndrome are challenged, but not the scientific reliability of the syndrome itself. My concern is that the syndrome, offered as an explanation of why a child may alternately deny and then admit that abuse took place, is, in reality, an expert’s opinion that a child is telling the truth when he says he has been abused. While we have permitted expert opinion evidence that a child has suffered from abuse, we have consistently refused to allow opinion evidence on credibility. See Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986). The “syndrome” involved herein appears to cross the line.
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Fretwell v. State, 586 So. 2d 483 (Fla. 5th DCA 1991)…o be scored only once for each victim as to each criminal episode or transaction and not once for each count or offense into which the events comprising a single criminal episode or transaction may have been divided and charged. See Booker v. State, 578 So. 2d 818 (Fla. 4th DCA 1991); Carter v. State, 573 So. 2d 426 (Fla. 5th DCA 1991); Williams v. State, 565 So. 2d 838 (Fla. 1st DCA 1990); Weekley v. State, 553 So. 2d 239 (Fla. 3d DCA 1989). See also Brown v. State, 581 So. 2d 242 (Fla. 5th DCA 1991); Gordon…
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Edwards v. State, 108 So. 3d 696 (Fla. 5th DCA 2013)…icitly concedes the error: It is equally clear that “[ajggravated battery with a firearm is not subject to reclassification pursuant to section 775.087(1) because the use of a firearm is an essential element of the crime.” Jacobs; Lareau v. State, 578 So. 2d 818 (Fla.1991); Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996). However, under Section 775.087(2)(a)(2), the Defendant is subject to a 20 year minimum mandatory sentence, even though the aggravated battery is a second degree felony. Under the stat…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986)
- Tillman v. State, 525 So. 2d 862 (Fla. 1988)
- Forney v. State, 567 So. 2d 60 (Fla. 4th DCA 1990)
- Killings v. State, 567 So. 2d 60 (Fla. 4th DCA 1990)
- Weekley v. State, 553 So. 2d 239 (Fla. 3d DCA 1989)
- Ritteman v. Dep't of Env't Reg., 565 So. 2d 838 (Fla. 1st DCA 1990)
- Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990)
- Tobias Barfield v. State, 564 So. 2d 616 (Fla. 4th DCA 1990)