STATE OF FLORIDA, APPELLANT,
v.
CARL DAVID MERRITT, APPELLEE
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Florida appeals a trial court's downward departure sentence for Merritt's conviction of lewd and lascivious acts on a minor. The appellate court affirms the reduction from 76.9 months to one year and one day in prison plus community control and probation, finding the trial court properly applied statutory mitigating circumstances.
The trial court properly imposed a downward departure sentence because the three mitigating circumstances under section 921.0016(4)(j) were satisfied: the conduct was isolated (never engaged in before, occurring within a short timeframe, with no prior criminal history), performed in an unsophisticated manner, and the defendant demonstrated genuine remorse.
[1] A trial court may depart downward from a presumptive sentence when statutory mitigating circumstances, such as an isolated incident, unsophisticated commission, and remor…
[2] A criminal act may be considered "isolated" for downward departure sentencing purposes if it is a first-time offense for the defendant and occurred over a relatively shor…
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Join FLexlaw to unlock all legal intelligence“Section 921.0016(4)(j) sets out three mitigating circumstances which, if combined, may justify a downward departure, but it does not define the terms used: an "isolated" incident, committed in an "unsophisticated" manner, and for which the defendant has shown "remorse."”
Establishes the statutory framework for downward departure sentences that the trial court applied
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Join FLexlaw to unlock all legal intelligenceMerritt committed three sex acts with a minor in a short span of time. He had no prior criminal history and had never engaged in such conduct in his 2…
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W. SHARP, Judge.
The state appeals from the trial court’s order which modified Merritt’s 76.9 month prison sentence for committing a lewd and lascivious or indecent act on a minor and enticing a minor to commit a lewd, lascivious or indecent act1 to a downward departure sentence of one year and one day in state prison, followed by one year of community control, followed by six years probation. We affirm.
Merritt was originally sentenced to 76.9 months in state prison. He appealed and that sentence was affirmed by this court. See Merritt v. State, 693 So. 2d 42 (Fla. 5th DCA 1997). On May 28, 1997, Merritt moved for a reduction or modification of his sentence. After a hearing at which additional testimony was taken, the trial judge granted Merritt relief and summarized, in a well-reasoned order, its findings and grounds for the departure sentence.
Section 921.0016(4)(j) sets out three mitigating circumstances which, if combined, may justify a downward departure, but it does not define the terms used: an “isolated” incident, committed in an “unsophisticated” manner, and for which the defendant has shown “remorse.” The trial court found that the three sex acts committed by Merritt had been “isolated” because they were something the defendant had never engaged in before, in his 25 year lifetime, and they took place in a relatively short span of time. Further, Merritt had no prior criminal history. That appears to us a reasonable interpretation of the statute, keeping in mind that criminal statutes should be construed liberally in favor of the person charged with a crime.2
The court also cited grounds to conclude the sex acts were performed in an unsophisticated manner.3 Further, the court, based on new testimony, concluded that the defendant truly was remorseful about his activities immediately after being accused. The evidence adduced at the hearing supports the court’s findings on these points.
The victim’s father expressed the view that the defendant should receive at least one year in jail followed by probation and counseling. The officer from the Department of Corrections who prepared the presentence investigation report recommended a sentence of one year of community control, followed by four years of probation. Only the state takes a contrary view.
This appears to us a classic case for imposition of a downward departure sentence in all regards.
AFFIRMED.
COBB, J., and ORFINGER, M., Senior Judge, concur. . § 800.4(2) and (3), Fla. Stat. (1995).
. See Perkins v. State, 576 So. 2d 1310 (Fla.1991); Ferguson v. State, 377 So. 2d 709 (Fla.1979); Quinn v. State, 662 So. 2d 947 (Fla. 5th DCA 1995); Ivory v. State, 588 So. 2d 1007 (Fla. 5th DCA 1991).
. The almost 16-year-old victim did not need to be instructed on how or what to perform; the defendant was nervous and unable to attain an erection, and his acts were artless, simple and not refined.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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State v. Stephenson, 973 So. 2d 1259 (Fla. 5th DCA 2008)…ficer), and State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004) (determining that convictions of burglary of dwelling and theft were not isolated incidents when defendant had ten felony and four misdemeanor prior convictions), with State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA 1998) (concluding that charged crimes were isolated incidents when they were activities defendant had never engaged in before, they took place in a relatively short span of time, and defendant did not have prior criminal history). Furt…
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State v. Randall, 746 So. 2d 550 (Fla. 5th DCA 1999)…n unsophisticated behavior) and that he was remorseful. These grounds are legally sufficient to support a downward departure sentence. State v. Sachs, 526 So. 2d 48 (Fla.1988); State v. McCloud, 721 So. 2d 1188 (Fla. 5th DCA 1998); State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA 1998). AFFIRMED. PETERSON and THOMPSON, JJ., concur. . This case has been ordered to travel together with case numbers 99-246, 99-1066, and 99-1095. According to the state, these appeals all involve improper downward departure sente…
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State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999)…e crimes after he was arrested. The statutory mitigating factor which includes remorse also includes two other components — that the crime was committed in an unsophisticated manner, and that the offense was an isolated incident.2 State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA 1998). Those elements were not present in this case. Further, the existence of remorse itself was established in a most cursory way, if at all, by Bleckinger’s testimony in court, and the written state [*555] ment made by a state emplo…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- Ferguson v. State, 377 So. 2d 709 (Fla. 1979)
- Ivory v. State, 588 So. 2d 1007 (Fla. 5th DCA 1991)
- Quinn v. State, 662 So. 2d 947 (Fla. 5th DCA 1995)