Austin v. State, BK-211
| Decision Date | 19 February 1987 |
| Docket Number | No. BK-211,BK-211 |
| Citation | 507 So.2d 132,12 Fla. L. Weekly 1271 |
| Parties | 12 Fla. L. Weekly 1271, 12 Fla. L. Weekly 572 Wyman L. AUSTIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
Wyman L. Austin appeals his sentence, which was imposed after conviction based on a guilty plea to kidnapping, armed robbery, sexual battery, and dealing in stolen property. He complains that the trial court erred in departing from the sentencing guidelines.
The first ground of departure, that the victim "has residual psychological trauma from her armed kidnapping, sexual assault and armed robbery at the hands of the defendant," is not a valid reason under the supreme court's recent decision in Lerma v. State, 497 So.2d 736 (Fla.1986). In that case the court noted that, while emotional hardship or trauma may support a departure sentence when emotional hardship is not an inherent component of the crime, citing Hankey v. State, 485 So.2d 827 (Fla.1986), nevertheless:
In contrast, emotional hardship can never constitute a clear and convincing reason to depart in a sexual battery case because nearly all sexual battery cases inflict emotional hardship on the victim. This same reasoning forces us to conclude that physical trauma cannot support a departure sentence in a sexual battery case.
The second ground for departure states that, subsequent to adjudication of guilt of the instant offenses but prior to imposition of sentence, Austin was convicted of felony murder and sentenced to life imprisonment, "to be served consecutive to the sentence imposed in this case." The murder conviction was not scored on the sentencing guidelines scoresheet as a prior record because the conviction occurred after commission of the primary offense. Rule 3.701(d)(5), Fla.R.Crim.P. Accordingly, it was not error for the trial court to rely upon this conviction as an additional ground for imposition of a departure sentence. Hunt v. State, 468 So.2d 1100 (Fla. 1st DCA 1985); Prince v. State, 461 So.2d 1015 (Fla. 4th DCA 1985); Davis v. State, 455 So.2d 602 (Fla. 5th DCA 1984).
Having determined that one of the grounds for departure was valid, but that the other ground was invalid, and not being convinced beyond a reasonable doubt that the trial judge would have imposed the same sentence in the absence of the improper ground, Allbritton v. State, 476 So.2d 158, 160 (Fla.1985), we reverse and remand for resentencing. The trial court may consider the presence or absence of the other factors described in Lerma v. State, 497 So.2d 736, upon resentencing.
REVERSED and REMANDED.
The state of Florida seeks rehearing, arguing that psychological trauma to the victim is not inherent in either armed robbery or kidnapping; thus, the trial judge's reliance on this reason should be affirmed on appellant's sentences for kidnapping and armed robbery. This court has recently held that psychological trauma is an inherent component of armed robbery. Simpson v. State, 505 So.2d 1378 (Fla. 1st DCA 1987).
The Second District Court of Appeal has held that psychological trauma to the victim can be a valid reason to depart in a kidnapping case. Griffin v. State, 470 So.2d 103 (Fla. 2d DCA) decision quashed on other grounds, 479 So.2d 739 (Fla.1985); Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985). In Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA 1986), however, the Second District held that, in order to constitute a valid reason for departure, the psychological trauma suffered by the victim "must be unusually greater than the trauma necessarily contained in the elements of the criminal charges." Tompkins, like Austin, was convicted of...
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