Casteel v. State, BC-480

• Decision Date: 03 January 1986
• Docket Number: No. BC-480,BC-480
• Parties: 11 Fla. L. Weekly 128 John Anthony CASTEEL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 72

481 So.2d 72

11 Fla. L. Weekly 128

John Anthony CASTEEL, Appellant, v. STATE of Florida, Appellee.

No. BC-480.

District Court of Appeal of Florida,

First District.

Jan. 3, 1986.

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.

PER CURIAM.

This cause is before us on appeal from a judgment, pursuant to a jury verdict, adjudicating defendant guilty of sexual battery with use of a deadly weapon and burglary of a dwelling while armed with a dangerous weapon, and a sentence of 30 years, a departure from the guidelines range. On appeal, defendant challenges, inter alia, the trial court's departure from the guidelines range.

Based on the evidence presented, the trial court departed from the 17-to-22-year recommended guidelines range, giving the following written reasons:

1. The offenses for which the Defendant was sentenced involved the use by him of a dangerous weapon, to wit: a knife.

2. The offenses for which the Defendant was sentenced were committed in a calculated manner without pretense of moral or legal justification.

3. The Defendant's prior history of criminal activity and behavior establishes a pattern of conduct that renders him a continuing and serious threat to the community.

4. The offense of Sexual Battery for which the Defendant was sentenced was committed in the view of the victim's son, who was 15 years of age at the time of the offense, and even though the Defendant might not have been aware of the boy's presence, the Defendant's offense will have a lasting traumatic effect on the boy as well as the victim.

5. The Defendant shows little or no remorse for having committed the offenses for which he was sentenced. At the trial he testified that he was intoxicated and did not remember what happened. Such testimony is contrary to that of the victim and the testimony of the police officers with respect to Defendant's statements at the scene of the crime.

The first reason for departure, defendant's use of a knife, is a valid reason for departure. While use of the knife is an element inherent in the charge of sexual battery with use of a deadly weapon, ¹ a first-degree burglary ² requires only that the defendant be armed with a dangerous weapon. Therefore, the actual use of the knife is not a factor considered in the establishment of the guidelines range for first-degree burglary and is a valid reason for departure.

The second reason recognizes the calculated manner in which the crime was committed. Because sexual battery with use of a deadly weapon is not a specific intent crime, the calculated manner in which it was committed is not a necessary element and therefore not considered in the establishment of the recommended guidelines range. This too is a valid reason for departure. Lerma v. State, 476 So.2d 275 (Fla. 5th DCA 1985) ("clear premeditation").

Reason number three, that defendant's pattern of conduct renders him a continuing threat to the community, is based factually on defendant's prior convictions and on the current conviction, and is an improper basis for a departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985); Smith v. State, 10 FLW 2370 (Fla. 1st DCA October 18, 1985).

Reason number four, that the sexual battery was committed in the presence of the victim's son and will have a traumatic effect on the victim and the son, i.e., emotional trauma of the victim, has been approved as a valid reason for departure. Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984). In Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985), the court holds that psychological trauma inflicted upon the victim and his family is properly considered as a reason for exceeding the guidelines. We hold the traumatic effect on the victim's son as well as the victim are valid reasons for departure.

The State concedes the final reason, lack of remorse, is not supported by the record and is not a valid reason for departure. Scurry v. State, 472 So.2d 779 (Fla. 1st DCA 1985).

Therefore, we conclude that three of the five reasons for departure given were valid or clear and convincing reasons for departure. Applying the test of Albritton v. State, 476 So.2d 158 (Fla.1985), we are convinced beyond a reasonable doubt that the trial court would have exceeded the guidelines sentence regardless of the improper reasons stated because of the particular circumstances of the offenses, the heinous, repugnant manner ³ of commission and the emotional trauma to the minor child present.

While we affirm the sentence imposed, we certify the following question as one of great public importance:

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED ON BOTH VALID AND INVALID REASONS FOR DEPARTURE, WHAT FACTORS SHOULD THE COURT WEIGH IN DETERMINING WHETHER IT IS CONVINCED BEYOND A REASONABLE DOUBT THAT THE ABSENCE OF THE INVALID REASON OR REASONS WOULD NOT HAVE AFFECTED THE TRIAL COURT'S EXERCISE OF ITS DISCRETION IN DEPARTING FROM THE GUIDELINES.

Affirmed.

BOOTH, C.J., and NIMMONS, J., concur.

ZEHMER, J., concurs in part and dissents in part.

ZEHMER, Judge, concurring in part and dissenting in part.

I concur with the majority that grounds two and four are legally sufficient to justify departure from the sentencing guidelines and that ground five is insufficient. I do not agree that the first ground, reciting use...