DEBORAH ROLLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the domestic violence multiplier for sentencing does not apply when the children were in a different room during the offense, even if they entered immediately after.
Appellant was convicted of second-degree murder. The trial court applied a domestic violence multiplier to her sentence because the offense occurred i…
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KLEIN, J.
Appellant was convicted of second degree murder as a result of shooting and killing her former husband. We find no errors as to the conviction,' but conclude that the trial court erred in using a domestic violence multiplier when imposing her sentence.
The multiplier was imposed under section 921.0024, Florida Statutes (1999), which provides for multiplying sentencing points by 1.5 if domestic violence is committed in the “presence” of a child who is a family household member. In this case it was undisputed that the shooting occurred in the mother’s bedroom while the children were in another bedroom. The children came into the mother’s bedroom right after the shooting.
The most comprehensive discussion of “presence” is found in State v. Werner, 609 So. 2d 585, 586 (Fla.1992), in which the defendant had admitted to his wife that he had masturbated while he and his thirteen month old daughter were in the bathroom.
The issue in Werner was whether the state had to prove, in a trial for committing a lewd or lascivious act in the presence of a child, that the act was perceived by the child. Our supreme court concluded, after discussing a number of definitions of “presence,” that the word “encompasses sensory awareness as well as physical proximity.” The court observed that even if the term “presence” was ambiguous, it would have to be construed most favorably to the accused and held that the element of presence was not established.
We agree with appellant that, because the children were in a different room in the house when the victim was shot, this crime was not committed in the children’s presence. Finding no other errors, we affirm the conviction, but remand for correction of the sentence.
STEVENSON and TAYLOR, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lane v. State, 973 So. 2d 654 (Fla. 1st DCA 2008)…ent that the child of the appellant and the victim resided in the home. However, no evidence was presented by the state on this issue or, more importantly, on the issue of whether their child was present during the domestic violence. Rolle v. State, 835 So. 2d 1258, 1259 (Fla. 4th DCA 2003) (remanding to the trial court for correction of the sentence when the State failed to establish the presence of a child under the age of 16 during the incident). In fact, the victim’s affidavit, which was accepted into evid…
Authorities Cited
- State v. Werner, 609 So. 2d 585 (Fla. 1992)