STATE OF FLORIDA, APPELLANT,
v.
CHARLES HOFFMAN, APPELLEE
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The State appealed a downward departure sentence of 15 years' probation imposed on Charles Hoffman following his no-contest plea to sexual battery. The Florida District Court of Appeal affirmed the sentence because at least one valid reason for departure was supported by the record, even though a second reason cited by the trial court was invalid.
The appellate court affirmed the sentence because at least one of the reasons given for departure—the defendant's inferior intelligence as testified to by Dr. Carpenter—was valid and supported by a preponderance of evidence, even though the second reason concerning the victim's alleged consent was invalid. Consent of an eleven-year-old victim cannot serve as a valid mitigating factor for downward departure in a sexual battery case.
[1] If any one of the reasons given for a departure sentence is valid, the sentence must be affirmed.
[2] Factors in favor of mitigating sentences must be proven by a preponderance of the evidence.
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Join FLexlaw to unlock all legal intelligence“if any one of the reasons given for a departure sentence is valid, the sentence must be affirmed”
Establishes the controlling legal standard for reviewing multiple reasons for departure sentences
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Join FLexlaw to unlock all legal intelligenceCharles Hoffman pleaded no contest to sexual battery under Florida Statute § 794.011(8)(b). The trial court sentenced him to 15 years' probation as a …
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STRINGER, Judge.
After pleading no contest to sexual battery, Charles Hoffman was sentenced to 15 years’ probation.1 The State challenges this downward departure sentence and argues that the reasons given for departure are invalid and unsupported by the record. Because one of the reasons given by the trial court in favor of departure is valid, we must affirm. See Kipping v. State, 702 So. 2d 578 (Fla. 2d DCA 1997) (if any one of the reasons given for a departure sentence is valid, the sentence must be affirmed).
The trial court sentenced Hoffman to 15 years’ probation, in part, based on the testimony of Dr. Richard Carpenter. Dr. Carpenter testified that Hoffman’s inferior intelligence rendered him incapable of appreciating the criminal nature of his acts and unable to conform his conduct to the requirements of the law.. The second reason given by the trial court in support of departure was the trial court’s belief that the victim was, “on at least one occasion, a willing participant in the sexual conduct.”
Factors in favor of mitigating sentences must be proven by a preponderance of evidence. See Davis v. State, 707 So. 2d 842 (Fla. 2d DCA 1998). In light of Dr. Carpenter’s testimony, we must find that the first reason given for departure is supported by a preponderance of evidence. See § 921.0016(4)(c), Fla. Stat. (1997). However, the second reason given for departure is without question invalid. We recognize that at least one court has found that under certain circumstances, a victim’s consent may serve as a mitigating factor in favor of downward departure for this offense, see State v. Rife, 24 Fla. L. Weekly D746, 733 So. 2d 541 (Fla. 5th DCA 1999) (en banc); nevertheless, such a finding cannot obtain in the present case where the victim was merely eleven years old.
The defendant in Rife, was convicted of three counts of sexual battery on a seventeen year old minor under his custodial care. The victim in that case was essentially homeless and had requested that Rife become her guardian, and Rife agreed. Their sexual activity began before the guardianship became effective, and according to the victim in that case, the activities were entirely consensual. The trial court imposed a downward departure sentence after concluding that the victim in that case was a willing participant. The fifth district affirmed the de parture sentence, and granted the State’s motion to certify the following questions to the supreme court:
Although willingness or consent of the minor is not a defense to sexual battery of a minor, may it be considered by the court as a mitigating factor in sentencing? [and] Should the mitigation also apply where the defendant is convicted of being in a position of custodial or familial authority with the victim?
State v. Rife, 733 So. 2d 541, 551 (Fla. 5th DCA 1999). There are significant factual distinctions between Rife and the present case, e.g., the victims’ ages, and circumstances under which Rife became the victim’s guardian. We conclude that “consent” to sexual activity given by an eleven-year-old is not a valid reason for the downward departure sentence. However, we affirm this case because Hoffman presented a valid reason for the departure sentence through the testimony of Dr. Carpenter. Affirmed.
THREADGILL, A.C.J., and PARKER, J., Concur. . Hoffman was charged with violating section 794.011(8)(b), Florida Statutes (1997).
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Citator
Cited By
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State v. Rife, 789 So. 2d 288 (Fla. 2001)…, the Second District has held that, as a matter of law, the consent of a minor victim can never constitute a valid reason for imposing a downward departure sentence. See State v. Harrell, 691 So. 2d 46 (Fla. 2d DCA 1997). See also State v. Hoffman, 745 So. 2d 985 (Fla. 2d DCA 1999); State v. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998). In State v. Stalvey, 25 Fla. L. Weekly D961, — So. 2d —, 2000 WL 370269 (Fla. 1st DCA Apr. 12, 2000), petition for review filed, No. SC00-823 (Fla. Apr. 14, 2000), the First D…
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Knox v. State, 814 So. 2d 1185 (Fla. 2d DCA 2002)…based on the [*1187] victim’s consent. The trial court stated that it felt constrained by this court’s mandate to sentence Knox within the guidelines. The court also believed that based on existing precedent in the Second District, State v. Hoffman, 745 So. 2d 985 (Fla. 2d DCA 1999); State v. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998); State v. Harrell, 691 So. 2d 46 (Fla. 2d DCA 1997), victim consent was not a valid reason for departure. The trial court, however, made it clear, and expressly stated that it…
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State v. Stalvey, 795 So. 2d 968 (Fla. 1st DCA 2000)…in State v. Harrell, 691 So. 2d 46 (Fla. 2d DCA 1997). There the Second District, relying on Scaife and Smith, held that willing participation cannot be a basis for downward departure in cases arising under section 800.04. See also State v. Hoffman, 745 So. 2d 985, 986-87 (Fla. 2d DCA 1999); State v. Whiting, 711 So. 2d 1212, 1214 (Fla. 2d DCA 1998). Accordingly, we certify conflict with Rife and Brooks. REVERSED and REMANDED. MINER and BROWNING, JJ., CONCUR; BENTON, J., DISSENTS WITH WRITTEN OPINION.…
Authorities Cited
- State v. Rife, 733 So. 2d 541 (Fla. 5th DCA 1999)
- Kipping v. State, 702 So. 2d 578 (Fla. 2d DCA 1997)
- Davis v. State, 707 So. 2d 842 (Fla. 2d DCA 1998)