DANIEL P. READY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's reasons for an upward departure sentence were invalid, requiring reversal.
[1] Abuse of a position of familial authority is an invalid justification for upward departure in a child molestation case.
[2] The need to protect the public, standing alone, is not a valid reason for upward departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of handling and fondling a child after a prior conviction was reversed and remanded for entry of a judgment on the lesser incl…
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PER CURIAM.
The appellant, Daniel P. Ready, challenges the upward departure sentence for his conviction of handling and fondling a child under sixteen years of age. We reverse.
Appellant was convicted of sexual battery of a child under twelve years of age. He appealed and this court reversed the judgment and vacated the sentence in Ready v. State, 636 So. 2d 67 (Fla. 2d DCA 1994). This court directed the trial court to enter a judgment against appellant for the lesser included offense of handling and fondling a child. On remand, the trial court entered a judgment for that offense and imposed an upward departure sentence of fifteen years in prison. Appellant filed a timely notice of appeal.
The trial court gave two reasons for the upward departure, the abuse of the position of familial authority and the need to protect the public including future victims. We agree with appellant’s contention that these two reasons for departure are invalid.
The first departure reason, abuse of familial authority, has been held by the supreme court to be an invalid justification for upward departure in a child molestation case. Wilson v. State, 567 So. 2d 425 (Fla.1990). Therefore, according to Wilson the first departure reason is invalid.
The second departure reason given by the court was the protection of the public including future victims. The fact that a defendant poses a threat to society, standing alone, is not a valid reason for departure. Garcia v. State, 521 So. 2d 278 (Fla. 2d DCA 1988). In the instant case, since there were no other facially valid reasons for departure, the second reason for departure, protection of the public, is invalid. Garcia v. State, 521 So. 2d at 279. See also Harris v. State, 531 So. 2d 1018 (Fla. 2d DCA 1988). Accordingly, since the trial court’s reasons were invalid, they cannot justify the upward departure and the sentence must be reversed. Upon remand, the appellant must be resentenced within the guidelines. Ber-gling v. State, 571 So. 2d 12 (Fla. 2d DCA 1990).
Reversed and remanded.
RYDER, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.
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Reed v. State, 192 So. 3d 641 (Fla. 2d DCA 2016)…” - B. The Concept of Public Danger Prior to section 775.082(10)’s passage, a court’s upward departure based on an offender’s danger to the public alone was impermissible. See Keys v. State, 500 So. 2d 134, 136 (Fla.1986); see also Ready v. State, 657 So. 2d 53, 53 (Fla. 2d DCA 1995); Reid v. State, 488 So. 2d 913, 915 (Fla. 2d DCA 1986); Angle v. State, 604 So. 2d 34, 35 (Fla. 1st DCA 1992); Odom v. State, 561 So. 2d 443, 445 (Fla. 5th DCA 1990); Morgan v. State, 528 So. 2d 991, 992 (Fla. 4th DCA 1988); M…
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Kipping v. State, 702 So. 2d 578 (Fla. 2d DCA 1997)…v. State, 664 So. 2d 1118 (Fla. 4th DCA 1995). The State also concedes that protection of the public and the age of the victims (numbers 1 and 2) are insufficient departure reasons unless coupled [*582] with another valid reason. See Ready v. State, 657 So. 2d 53 (Fla. 2d DCA 1995); Lattimore v. State, 571 So. 2d 99 (Fla. 3d DCA 1990). Therefore, there is no need to analyze these two factors unless there exists another valid basis for departure in the remaining reasons. Emotional trauma (number 3) fails for…
Authorities Cited
- Wilson v. State, 567 So. 2d 425 (Fla. 1990)
- Ready v. State, 636 So. 2d 67 (Fla. 2d DCA 1994)
- Harris v. State, 531 So. 2d 1018 (Fla. 2d DCA 1988)
- Herminio Jesus Garcia v. State, 521 So. 2d 278 (Fla. 2d DCA 1988)
- Bergling v. State, 571 So. 2d 12 (Fla. 2d DCA 1990)