JAMES MIDDLEBROOK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Middlebrook appealed his convictions and sentences for eight sex offenses against two child victims. The court affirmed his convictions but reversed his sentence because the trial court failed to provide a valid factual basis for departing upward from sentencing guidelines.
The court affirmed all eight convictions but reversed the sentence because the trial court failed to provide adequate factual support for departing from the guidelines and the grounds cited for departure were legally invalid.
[1] A written order departing from sentencing guidelines must provide a factual basis for the reasons stated.
[2] Victim vulnerability and abuse of trust are common factors in child molestation cases and do not constitute grounds 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“Without providing a factual basis for any of the reasons, the court entered a written order departing from the guidelines on five grounds. Aside from the fact that this barebones order was fatally flawed, none of the grounds appears valid in this case.”
Establishes the core error: inadequate factual support and invalid grounds for sentencing departure.
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Join FLexlaw to unlock all legal intelligenceMiddlebrook, a neighbor in Tampa, befriended two young children (ages 8 and 10) by allowing them to visit his workshop to play with his dogs. Over tim…
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FRANK, Judge.
James Middlebrook has appealed from convictions and sentences for eight offenses involving sexual activity with children. He has raised five issues relative to his convictions and sentencings, but only one has merit.
The victims in this case, E.R. and B.R., are sister and brother. At the time of the offenses, E.R. was 10 and B.R. was 8. Middlebrook was their neighbor in the Old Carrollwood section of Tampa, and they first encountered him as he walked his dogs, one of which was especially endearing to the children. It became their custom to visit the workshop behind Middlebrook’s house to chat and play with the dogs. Once a friendship had formed between Mid-dlebrook and the children, he began an insidious course of sexual abuse. The acts testified to by the children included fondling of both children, masturbation in front of them, exposing them to pornographic materials, encouraging them to masturbate, touching the boy’s penis, and inserting his finger into the girl’s vagina. This conduct occurred while both children were present.
For these acts the jury convicted Middle-brook of the following: Count I — lewd assault on B.R. by touching his sexual organ; Count II — lewd assault on B.R. by having the child touch Middlebrook’s sexual organ; Count III — child abuse by contributing to the delinquency of B.R.; Count IV — sexual battery upon E.R. by digital penetration of her vagina; Count V — lewd act, by Middle-brook’s fondling of his sexual organ in the presence of E.R.; Count VI — child abuse— contributing to E.R.’s delinquency; Count VII — lewd act in the presence of E.R. by fondling B.R.’s sexual organ; and Count VIII — lewd act in the presence of B.R. by fondling or penetrating E.R.’s vagina. The trial judge departed from the guidelines and sentenced Middlebrook to consecutive terms of 15 years on Count I, 15 years on Count II, 60 days on Count III, life on Count IV, 15 years on Count V, 60 days on Count VI, 15 years on Count VII, and 15 years on Count VIII. We affirm Middle-brook’s convictions but reverse his sentence and remand for resentencing.
Without providing a factual basis for any of the reasons, the court entered a written order departing from the guidelines on five grounds. Aside from the fact that this barebones order was fatally flawed, none of the grounds appears valid in this case. See Wilson v. State, 567 So. 2d 425 (Fla.1990) (victim vulnerability and abuse of trust are common factors in child molestation cases and not grounds for departure); Barfield v. State, 594 So. 2d 259 (Fla.1992) (continuing and persistent course of criminal conduct is invalid ground absent escalating pattern); Koleta v. State, 592 So. 2d 1267 (Fla. 2d DCA 1992) (careful execution rarely warrants departure on the basis of premeditation); and Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990) (non-amenability to rehabilitation factored into prior record and is an invalid basis for departure).
Accordingly, we reverse Middlebrook’s sentence and remand for resentencing within the guidelines.
RYDER, A.C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Marcott v. State, 635 So. 2d 55 (Fla. 1st DCA 1994)…rt’s first departure reason, abuse of trust in the exercise 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 t…
Authorities Cited
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)
- Wilson v. State, 567 So. 2d 425 (Fla. 1990)
- Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990)
- Koleta v. State, 592 So. 2d 1267 (Fla. 2d DCA 1992)