Cruz v. State, 95-0129

• Decision Date: 03 July 1996
• Docket Number: No. 95-0129,95-0129
• Citation: 677 So.2d 365
• Parties: 21 Fla. L. Weekly D1569 Porfirio CRUZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 365

677 So.2d 365

21 Fla. L. Weekly D1569

Porfirio CRUZ, Appellant, v. STATE of Florida, Appellee.

No. 95-0129.

District Court of Appeal of Florida Fourth District.

July 3, 1996.

Rehearing Denied Aug. 20, 1996.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee; and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Porfirio Cruz appeals his convictions and sentence for sexual battery and stalking (misdemeanor). We are unpersuaded by the arguments directed to the convictions, and therefore affirm. We reverse and remand, however, as to the trial court's departure from the guidelines in sentencing appellant.

The victim of appellant's offense was his estranged wife. The parties' two-year-old son was in the residence at the time the rape occurred, but there is no evidence he was in the same room when the actual offense took place. The trial court gave two reasons for departing from the sentencing guidelines: (1) because the victim was physically attacked by the defendant in the presence of a member of the victim's family; and (2) the victim suffered severe psychological injury not scoreable on a guideline scoresheet. Cruz contends that these are both invalid reasons for departing from the sentencing guidelines.

Cruz argues that the first reason for departing from the sentencing guidelines was erroneous because when the actual sexual battery occurred, the victim's son was in another room of the house. He suggests that this is in contrast to Casteel v. State, 498 So.2d 1249, 1253 (Fla.1986), in which the supreme court approved a departure where the son of the victim and defendant actually witnessed the attack. Cruz also contends that the second reason is inadequate because any psychological trauma to the victim was not identified as attributable to the instant offense. See Audano v. State, 641 So.2d 1356, 1361 (Fla. 2d DCA 1994) (psychic trauma did not support departure where psychologist's report stated that it cannot be known to what extent the victim's problems were attributable to the charged offense).

Our difficulty is that the trial court's reasons for the departure sentence were not stated with sufficient specificity for us to determine whether the facts elicited support these reasons, and in what respect. See Viera v. State, 490 So.2d 1332 (Fla. 3d DCA 1986) (more detailed...