STATE OF FLORIDA, APPELLANT,
v.
ANTOINE SCAIFE, APPELLEE
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Florida appeals a trial court's downward departure sentence in a lewd act with a child case. The appellate court held that the trial judge's reasons for departing below the sentencing guidelines—lack of prior record, characterization as a dating situation, and low recidivism risk—were legally insufficient.
The trial court's reasons for downward departure were clearly inadequate and legally improper. Lack of prior record is not a valid departure reason; the victim's consent or the dating nature of the relationship is irrelevant given statutory language; and the defendant did not demonstrate the exceptional circumstances (such as isolated conduct unaccounted for by guidelines or clear remorse with doubted responsibility) required under precedent to justify downward departure.
[1] A defendant's lack of a prior felony record is not a proper reason for a downward departure sentence.
[2] The victim's consent or lack of chastity is not a defense to a charge under section 800.04, Florida Statutes, and therefore cannot serve as a basis for a downward departu…
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Join FLexlaw to unlock all legal intelligence“the lack of a prior record is not a proper reason for departing”
Establishes that absence of criminal history cannot support downward departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceAntoine Scaife, age 21, entered a plea of nolo contendere to committing a lewd act upon a 15-year-old female in violation of Florida law. Scaife and t…
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PETERSON, Chief Judge.
The State of Florida appeals a downward departure sentence imposed upon Antoine Scaife, a 21, year old who entered a plea of nolo contendere to the charge of committing a lewd act upon a child under the age of 16 in violation of section 800.04(3), Florida Statutes (1993). Specifically, he and the 15 year old female victim engaged in a relationship evidently approved of by the victim’s family. The relationship went beyond the family’s approval when it advanced to a sexual relationship, pregnancy and an abortion.
The trial judge was apparently sympathetic to the defendant’s plight, departing from the minimum guidelines sentence of 40.8 months, the sentence suggested by the state, and imposing 51 weeks imprisonment followed by five years probation. The trial court’s reasons for departing were Scaife’s lack of prior felony convictions, her opinion that Scaife and the victim were engaged in a dating situation and her belief that he was not likely again to engage in a criminal course of conduct. Thus, the trial court opined that the ends of justice and the welfare of society did not require that Scaife should suffer the penalty authorized by law.
While this case exemplifies the discretion that should be left with a trial judge to fashion a sentence commensurate with the offense, the applicability of the guidelines in the instant ease is clear and the trial court’s reasons for a downward departure are clearly inadequate. First, the lack of a prior record is not a proper reason for departing. Sanders v. State, 510 So. 2d 296, 297 (Fla.1987).
Second, the fact that the defendant and the victim were involved in a “dating situation” and by inference were engaged in a consensual sexual relationship is of no consequence because of the language contained in section 800.04(4), Florida Statutes (1993): “Neither the victim’s lack of chastity nor the victim’s consent is a defense....” State v. Smith, 668 So. 2d 639 (Fla. 5th DCA 1996) (key feature of section 800.04 is the irrelevancy of a child’s consent to sex, and thus, it is inconceivable that a child’s consent could be a basis for downward departure).
Finally, in State v. Sachs, 526 So. 2d 48 (Fla.1988), the supreme court held that a downward departure sentence may be based upon a finding that a defendant posed no future threat to society and that his conduct was isolated. The facts of the Sachs case showed that defendant’s use of alcohol at the time of the accident (which led to defendant’s plea of no contest to charges of manslaughter) was an isolated incident that was not taken into account by the sentencing guidelines nor prohibited by them, and is not an element of the crime itself; therefore, that factor was a valid reason for a downward departure. The facts of that case further showed that there was doubt as to defendant’s responsibility for the death of the two victims as well as clear and convincing evidence of actual remorse by the defendant. Both of these reasons were also held to justify a downward departure. No such factors are present in the instant case.
We vacate the downward departure sentence, and remand to the trial court for resentencing within the guidelines.
SENTENCE VACATED; REMANDED.
COBB and THOMPSON, JJ., concur.
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Citator
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LEE v. State, 223 So. 3d 342 (Fla. 1st DCA 2017)…lack of criminal history. This is not a valid reason for departing because a defendant’s criminal history is considered when calculating his minimum permissible sentence. See State v. Chapman, 805 So. 2d 906, 908 (Fla. 2d DCA 2001); State v. Scaife, 676 So. 2d 1035, 1036 (Fla. 5th DCA 1996). Thus, none of the non-statutory mitigators were permissible considerations in accordance with legislative sentencing policies. As neither the statutory mitigator nor the non-statutory mitigators supported a downward depart…
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State v. Darron K. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998)…se express any regret as to his actual conduct, nor did he acknowledge any wrongdoing. Consent is also not an appropriate mitigating factor under these circumstances. See State v. Harrell, 691 So. 2d 46 (Fla. 2d DCA 1997). See also State v. Scaife, 676 So. 2d 1035 (Fla. 5th DCA 1996); State v. Smith, 668 So. 2d 639 (Fla. 5th DCA 1996); State v. Johns, 576 So. 2d 1332,1335 (Fla. 5th DCA 1991)(suggesting that a person in a position of trust and authority who engages in illicit sexual conduct with' an underage p…
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State v. Rife, 733 So. 2d 541 (Fla. 5th DCA 1999)…do it. The statutory reasons invoked by the trial court to support a downward departure in this case were not supported by clear and convincing evidence. See Chandler, Mischler. The reasons for departure are clearly inadequate. See State v. Scaife, 676 So. 2d 1035 (Fla. 5th DCA 1996). I would remand for sentencing within the guidelines. GRIFFIN, C.J., concurs. EN BANC ON MOTION TO CERTIFY We grant the state’s Motion to Certify and certify the following question: ALTHOUGH WILLINGNESS OR CONSENT OF THE MINO…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Sachs, 526 So. 2d 48 (Fla. 1988)
- Sanders v. State, 510 So. 2d 296 (Fla. 1987)
- State v. Smith, 668 So. 2d 639 (Fla. 5th DCA 1996)