LESTER FIRKEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fourth District Court of Appeal reversed a trial court's departure sentence for attempted sexual battery of a child, holding that the trial court improperly relied on three invalid factors (familial custodial authority, victim vulnerability, and psychological trauma) to impose the maximum thirty-year sentence outside the sentencing guidelines.
The trial court's departure sentence was improper because none of the three cited reasons constituted valid grounds for departure: familial custodial authority has been rejected as a valid sentencing factor; victim vulnerability is inherent in the crime of sexual battery of a child and cannot justify departure; and the psychological trauma alleged was not sufficiently extraordinary under the standards established in prior case law.
[1] Familial custodial authority is not a valid reason for departing from sentencing guidelines.
[2] A victim's extreme vulnerability, inherent in the nature of the crime, does not provide a valid reason for departure from sentencing guidelines.
Previewing 2 of 4 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“The supreme court rejected "familial custodial authority" as a valid reason for departure in Wilson v. State, 567 So.2d 425 (Fla.1990) and Cumbie v. State, 574 So.2d 1074 (Fla.1991)”
Establishes that one of the trial court's three stated departure reasons has been rejected by higher authority as invalid.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Firkey had his original sexual battery conviction reversed on appeal and was resentenced by the trial court for attempted sexual battery of …
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DELL, Judge.
This court reversed appellant’s first conviction for sexual battery of a child eleven years of age or younger and on remand directed the trial court to enter judgment for attempted sexual battery of a child eleven years of age or less and to resen-tence appellant. 557 So. 2d 582. The trial court modified the judgment of conviction in accord with this court’s direction but departed from the sentencing guidelines when it resentenced appellant to the maximum allowable sentence of thirty years, with credit “for all time served.” The trial court justified its departure sentence in a written order which cited three grounds for its departure:
1. Familial custodial authority held by the Def. over the victim
2. Extreme vulnerability of the victim at the time of the occurrence coupled with the resulting 3. Extraordinary mental trauma imposed upon an eight year old child, scarring her psychologically for life.
We reverse.
The supreme court rejected “familial custodial authority” as a valid reason for departure in Wilson v. State, 567 So. 2d 425 (Fla.1990) and Cumbie v. State, 574 So. 2d 1074 (Fla.1991); accord Watson v. State, 579 So. 2d 900 (Fla. 4th DCA 1991). The victim’s extreme vulnerability does not provide a valid reason for departure because appellant’s crime, attempted sexual battery of a child eleven years of age or younger, contemplates the victim’s tender years and vulnerability. See Leon v. State, 498 So. 2d 680 (Fla.3d DCA 1986).
As to the third reason for departure, the supreme court stated in State v. Rousseau, 509 So. 2d 281 (Fla.1987) “that almost all victims of a crime will feel some type of trauma; this type of trauma which usually and ordinarily results from being a victim of a crime is inherent in the crime and may not be used to justify departure.” Id. at 284. While the cases of Hall v. State, 517 So. 2d 692 (Fla.1988) and Wilson v. State, 567 So. 2d 425 (Fla.1990) approved departure based on the extreme trauma suffered by the victim, the facts sub judice do not merit the same result. In those cases, unlike the one before us, the records contained substantia] testimony, including that of experts, which established that the victims’ psychological and physical manifestations were extraordinary even for the type of trauma suffered.
Accordingly, we reverse and remand for resentencing within the guidelines. See Shull v. Dugger, 515 So. 2d 748 (Fla.1985).
REVERSED and REMANDED.
ANSTEAD and LETTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Audano v. State, 641 So. 2d 1356 (Fla. 2d DCA 1994)…rdinary circumstances, extreme or severe psychological trauma not inherent in the crime charged can serve as a basis for departure. Karchesky v. State, 591 So. 2d 930, 932 (Fla.1992); Wilson v. State, 567 So. 2d 425, 427 (Fla.1990); Firkey v. State, 593 So. 2d 1155, 1156 (Fla. 4th DCA 1992). The psychologist’s report does not, however, support this criteria. He characterized her psychological problems as “typical,” and stated that it cannot be known to what extent her problems are attributable to the charged…
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Marcott v. State, 635 So. 2d 55 (Fla. 1st DCA 1994)…of custodial authority, was ruled invalid by the supreme court in Wilson v. State, 567 So. 2d 425 (Fla.1990), and Cumbie v. State, 574 So. 2d 1074 (Fla.1991). See also Middlebrook v. State, 617 So. 2d 1161 (Fla. 2d DCA 1993); [*57] Firkey v. State, 593 So. 2d 1155 (Fla. 4th DCA 1992); Watson v. State, 579 So. 2d 900 (Fla. 4th DCA 1991). The trial court’s second departure reason, premeditation and planning over a long period of time, was approved by the supreme court in State v. Obojes, 604 So. 2d 474 (Fla.19…
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Buckner v. State, 637 So. 2d 392 (Fla. 4th DCA 1994)…PER CURIAM. Appellant asserts, and the State concedes, the trial court made two errors below. First, the record does not support the court’s cited reason for imposing a departure sentence. See Firkey v. State, 593 So. 2d 1155 (Fla. 4th DCA 1992) (holding the type of trauma that usually results from being a victim of a crime may not be used to justify departure). Second, the amended judgment contains several errors, including: it erroneously reflects that Count II is a se…
Authorities Cited
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- J.I. Case Co. v. Henley, 517 So. 2d 692 (Fla. 1988)
- Wilson v. State, 567 So. 2d 425 (Fla. 1990)
- Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989)
- Watson v. State, 579 So. 2d 900 (Fla. 4th DCA 1991)
- Cumbie v. State, 574 So. 2d 1074 (Fla. 1991)
- Maddox v. Caminez, 498 So. 2d 680 (Fla. 1st DCA 1986)