Brooks v. State, BG-484

• Decision Date: 09 April 1986
• Docket Number: No. BG-484,BG-484
• Citation: 487 So.2d 68,11 Fla. L. Weekly 844
• Parties: 11 Fla. L. Weekly 844 Richard John BROOKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 68

487 So.2d 68

11 Fla. L. Weekly 844

Richard John BROOKS, Appellant, v. STATE of Florida, Appellee.

No. BG-484.

District Court of Appeal of Florida First District.

April 9, 1986.

Rehearing Denied May 2, 1986.

Michael E. Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

This is an appeal from a judgment and sentence in which the trial court departed from the recommended guideline sentence of three years, and imposed two 6-year terms of incarceration--the sentences to be served concurrently. The question presented for our review is whether the trial court provided clear and convincing reasons for departure from the recommended guideline sentence. We affirm on the basis of two of the reasons provided for departure.

In three separate informations, Brooks was charged with burglary of a dwelling. The charged offenses occurred on December 9, 1984; December 10, 1984; and February 21, 1985. In each instance, the residents of the respective dwellings were present at the time of the burglary. Brooks entered pleas of nolo contendere to each of the charges.

At the sentencing proceeding the trial judge stated he was departing from the recommended guideline sentencing range. In the guideline scoresheet space provided for a statement of the reasons for departure, the trial judge wrote:

In each case the defendant entered a dwelling that was occupied. In each case he was discovered by the occupants creating great psychological harm to the victim. His record while on probation and previously in prison shows defendant unable to conform himself or his behavior to acceptable norms.

Brooks was adjudicated guilty of three charges of second degree burglary. The applicable statute, Section 810.02(3), Florida Statutes (1983), provides in relevant part:

If the offender does not make an assault or battery or is not armed, or does not arm himself, with a dangerous weapon or explosive ... during the course of committing the offense and the structure or conveyance entered is a dwelling or there is a human being in the structure ... at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, ... Otherwise, burglary is a felony of the third degree, ... (emphasis supplied).

The first reason provided by the trial court for departure from the guideline sentencing range was that in each instance Brooks entered an occupied dwelling. Brooks contends the fact that the dwellings were occupied is a factor inherent in the crime of burglary, and cannot serve as a basis for departure. See: Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984); Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA 1986). We disagree. Section 810.02(3) contemplates entry of a dwelling or entry of a structure while a human being is in the structure. In this case, Brooks entered three dwellings when the residents of those dwellings were present. We consider that these circumstances added an element not included within the statutory frame, i.e., dwelling and the presence of a human being. Therefore, we consider this reason a valid ground for departure.

The second reason for departure was that in each case Brooks's presence within the respective dwelling was discovered by the occupants--thereby inflicting psychological harm to them. A victim's psychological trauma has been held a valid ground for...