Hawkins v. State, BR-420
| Decision Date | 17 March 1988 |
| Docket Number | No. BR-420,BR-420 |
| Citation | 13 Fla. L. Weekly 722,522 So.2d 488 |
| Parties | 13 Fla. L. Weekly 722 Lucian Herman HAWKINS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Appellant Lucian Hawkins was convicted of two counts of sexual battery using slight force, a second degree felony, pursuant to § 794.011(5), Fla.Stat. (1985). The court imposed a departure sentence of 15 years incarceration on each count, which Hawkins argues is unsupported by any valid reasons for departure. We cannot agree that the reasons are totally invalid, but we are compelled to agree that one of the reasons appears to be invalid at least in part. Accordingly we affirm the convictions but reverse the sentences and remand for resentencing.
The evidence adduced below established that Hawkins had nonconsensual sexual intercourse with the victim and then forced her to perform fellatio. The victim is Hawkins' 25 year old aunt who is mentally retarded and confined to a wheelchair by cerebral palsy. The sexual battery occurred at Hawkins' house where the victim, who lives in a group home, was spending the weekend. The victim has an I.Q. of 55, and her social age equivalent is that of a 6 1/2 year old child. She is able to perform some minimal personal care tasks, but is unable to live and function independently without care. The victim is extremely fond of Hawkins, her 19 year old nephew.
Hawkins was initially charged pursuant to § 794.011(4)(a), Fla.Stat. (1985) with two counts of sexual battery upon a person 12 years of age or older without that person's consent when the victim is physically helpless to resist. Hawkins conceivably could have been, but was not, charged pursuant to subsection (4)(e) with sexual battery of a victim the offender knows to be mentally defective. Appellant was convicted of two counts of the lesser included offense of sexual battery using physical force and violence not likely to cause serious personal injury, a second degree felony, pursuant to § 794.011(5), Fla.Stat. (1985).
The recommended guidelines sentence was 5 1/2 to 7 years incarceration. Instead, the court sentenced Hawkins to 15 years incarceration on each count. As its reasons for the imposition of a departure sentence the court stated:
Before the court is a nineteen year old male convicted of sexual battery with slight force upon a retarded female relative. The circumstances of this case dictate an upward departure from the sentencing guidelines first because of the particular vulnerability of the victim due to her retardation and the trust arising from the familiar [sic] relationship between the two.
Secondly, because the sexual assault was committed by one in a position of familiar [sic] authority whom she should have been able to rely upon for protection and sanctuary. For these reasons the court feels compelled to an upward departure from the sentencing guidelines.
The court's reliance on the fact that Hawkins stood in a position of familial authority to the victim, and that by virtue of that relationship a special trust existed between him and the victim which Hawkins abused, is a valid reason for departure. Davis v. State, 517 So.2d 670 (Fla.1987); Williams v. State, 462 So.2d 36 (Fla. 1st DCA), review denied 471 So.2d 44 (Fla.1985). This factor is not one which is common to virtually all sexual batteries, so it is also a valid reason in this regard. Compare Hall v. State, 517 So.2d 692 (Fla.1988); Mathis v. State, 515 So.2d 214 (Fla.1987); Lerma v. State, 497 So.2d 736 (Fla.1986).
Hawkins argues that in considering the victim's vulnerability as a result of her mental deficiency, the court's reason for deviating from the guidelines improperly includes factors relating to the instant offense for which convictions have not been obtained, in violation of Fla.R.Crim.P. 3.701 d.11. A victim's particular vulnerability may constitute a valid basis for departure, particularly when the offender is aware of the vulnerability. Colemen v. State, 515 So.2d 313 (Fla. 2d DCA 1987); Berry v. State, 511 So.2d 1075 (Fla. 1st DCA 1987); Moore v. State, 468 So.2d 1081 (Fla. 3d DCA 1985). Although we believe that the victim's vulnerability as a result of her retardation is a valid basis for departure in the instant case, we also must agree with Hawkins that the court's reference to the victim's mental deficiency constitutes a violation of the prohibition...
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Smith v. State
...of a position of familial authority over the victim, is valid. See Davis v. State, 517 So.2d 670, 673-674 (Fla.1987); Hawkins v. State, 522 So.2d 488 (Fla. 1st DCA 1988); Williams v. State, 462 So.2d 36 (Fla. 1st DCA), review denied, 471 So.2d 44 (Fla. 1985). However, appellant contends tha......
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Wilson v. State, 88-2533
...and by virtue thereof she was in a particularly vulnerable position because of the trust she placed in the defendant. Hawkins v. State, 522 So.2d 488 (Fla. 1st DCA 1988). 2. Because the sexual assault was committed by one in a position of familial authority and the defendant was convicted o......
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...the defendant abused, there exists a valid reason for departure. Smith v. State, 525 So.2d 477 (Fla. 1st DCA 1988); Hawkins v. State, 522 So.2d 488 (Fla. 1st DCA 1988); Williams v. State, 462 So.2d 36 (Fla. 1st DCA 1984), review denied, 471 So.2d 44 (Fla.1985). See also Gardener v. State, 4......
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...and by virtue thereof she was in a particularly vulnerable position because of the trust she placed in the defendant. Hawkins v. State, 522 So.2d 488 (Fla. 1st DCA 1988). 2. Because the sexual assault was committed by one in a position of familial authority and the defendant was convicted o......