HAROLD ALLING, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the conviction for lewd and lascivious conduct with a child but reversed the sentence because the trial court improperly departed from sentencing guidelines without valid reasons under pre-1994 law.
A trial court's departure from sentencing guidelines based on victim age is invalid when the state fails to prove the offense occurred after January 1, 1994, when amended guidelines made such age-based departures permissible.
[1] Under sentencing guidelines in effect prior to January 1, 1994, victim age is not a valid reason for departure from the guideline range, even in offenses where age is an…
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Join FLexlaw to unlock all legal intelligenceHarold Alling was convicted of committing a lewd and lascivious act in the presence of a child under sixteen. The trial court sentenced him to 15 year…
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PER CURIAM.
We affirm Mr. Ailing’s conviction for committing a lewd and lascivious act in the presence of a child under the age of sixteen. We reverse his sentence and remand for resentencing within the guidelines.
The trial court departed from the guidelines range of 2 to 3.3 years’ imprisonment and sentenced Mr. Ailing to 15 years’ incarceration. Its written reasons for departure were essentially the psychological trauma to the victim and her age. Had Mr. Ailing’s crime been committed after January 1, 1994, the victim’s age would have been a valid reason for departure under the amended sentencing guidelines. See § 921.006(3)(j), Fla. Stat. (1993); Fla.R.Crim.P. 3.702(d)(18). See also Capers v. State, 670 So. 2d 967 (Fla. 1st DCA 1995) (holding that Legislature intended 1994 amended guidelines to overrule existing case law and as such, vulnerability due to victim’s age is valid reason for departure even in cases where age is element of offense). The state, however, did not prove by a preponderance of the evidence that the offense was committed after January 1,1994; therefore, none of the reasons for departure are valid under the case law existing prior to that date. See Wemett v. State, 567 So. 2d 882 (Fla.1990); Wilson v. State, 567 So. 2d 425 (Fla.1990). Accordingly, we reverse Mr. Ailing’s sentence and remand for resentencing within the guidelines.
PATTERSON, A.C.J., and ALTENBERND and LAZZARA, JJ., concur.
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Kirby v. State, 695 So. 2d 889 (Fla. 2d DCA 1997)…against him. Since $253 of the $255 costs assessed in this matter were mandatory court costs, the trial court was not required to orally announce the dollar amount nor cite the statutory authority for the imposition of these costs. Lewis v. State, 671 So. 2d 295 (Fla. 2d DCA 1996); Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995). These costs must be stricken, however, because the trial court in its written order did not set forth the statutory authority for their imposition. The statutory authority for al…
Authorities Cited
- Wemett v. State, 567 So. 2d 882 (Fla. 1990)
- Wilson v. State, 567 So. 2d 425 (Fla. 1990)
- Capers v. State, 670 So. 2d 967 (Fla. 1st DCA 1995)