Haye v. State, 92-1019

• Decision Date: 05 March 1993
• Docket Number: No. 92-1019,92-1019
• Citation: 615 So.2d 762
• Parties: 18 Fla. L. Week. D646 Howard HAYE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 762

615 So.2d 762

18 Fla. L. Week. D646

Howard HAYE, Appellant, v. STATE of Florida, Appellee.

No. 92-1019.

District Court of Appeal of Florida Fifth District.

March 5, 1993.

James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.

DIAMANTIS, Judge.

Appellant Howard Haye appeals the trial court's imposition of a departure sentence and five consecutive three-year mandatory minimum sentences. We affirm appellant's convictions and the departure sentence; however, we reverse in part the imposition of the consecutive mandatory minimum sentences.

In June of 1990 appellant, with the help of his brother, assaulted two female tourists (D and R) in an Orlando motel. Specifically, the brothers forced the women into their hotel room as they were unlocking the door, robbed the women of their jewelry and then appellant sexually battered one of the victims (R). The brothers then fled in the victims' rental car. Appellant brandished a firearm at the time he committed these offenses.

The jury found appellant guilty of two counts of sexual battery with a firearm, ¹ two counts of robbery with a firearm, ² one count of burglary of a dwelling with a battery, ³ and one count of grand theft of an automobile. ⁴ The trial court entered judgment on the jury's verdict and then departed from the guidelines and sentenced appellant to:

(1) 40 years imprisonment with a three-year mandatory minimum ⁵ on count 1 (sexual battery of R),

(2) 40 years imprisonment with a three-year mandatory minimum on count 2 (sexual battery of R),

(3) 40 years imprisonment with a three-year mandatory minimum on count 3 (armed robbery of R),

(4) 40 years imprisonment with a three-year mandatory minimum on count 4 (armed robbery of D),

(5) 40 years imprisonment with a three-year mandatory minimum on count 5 (burglary with a battery), ⁶ and

(6) 5 years imprisonment on count 7 (grand theft auto). The trial court ordered that all the sentences are to run consecutive to each other.

The sentence imposed exceeds both the recommended guidelines sentence and the permitted sentencing range. Recognizing that the sentence constitutes a departure, the trial court provided written reasons to justify departure. Specifically, the trial court stated that departure was justified because (1) the victim of the sexual battery suffered extreme emotional trauma as a result of the crime, and (2) appellant committed two additional armed robberies a week after he committed the instant offenses.

Appellant first contends that the trial court's reasons for departure are not sufficient. We reject this contention.

As noted above, the trial court departed from the recommended sentencing guidelines by sentencing appellant on the two sexual battery counts to 40 years imprisonment. The trial court based its decision to depart on the fact that the victim of the sexual battery (R) experienced extreme emotional trauma as a result of the crime. Emotional trauma is a valid reason for departure when the trauma is so substantial that it results in a discernible physical manifestation. Barrentine v. State, 521 So.2d 1093, 1094, n. 1 (Fla.1988); State v. Rousseau, 509 So.2d 281, 284 (Fla.1987). See also Wilson v. State, 567 So.2d 425 (Fla.1990); Harris v. State, 531 So.2d 1349 (Fla.1988); Smith v. State, 526 So.2d 1060 (Fla. 1st DCA 1988); Smith v. State, 525 So.2d 477 (Fla. 1st DCA 1988).

Here, the trial court concluded that R suffers from emotional trauma so substantial that it results in discernible physical manifestations. In its written order justifying departure the trial court stated:

[T]he victim of the sexual batteries, [R], has suffered extreme psychological or mental trauma that is clearly beyond that is normally associated with the crime of sexual battery. [R] as a result of this crime has had to have regular psychological counseling; she has suffered recurring nightmares and had difficulty in sleeping; and she has displayed a fear of being around strangers and leaving her home environment.... [T]hat [R]'s psychotherapist, Carl R. Maurer, in a letter addressed to the court dated March 8, 1992 stated he was helping her manage symptoms associated with her post-traumatic stress disorder. He stated that this post-traumatic stress disorder symptomology was related to the sexual assault. Mr. Maurer also stated the following concerning [R]: "She experienced recurrent and intrusive recollections of this event along with recurrent distressing dreams and on occasion had disassociative states of brief duration. In addition [R] had persistent avoidance of stimuli events (e.g., other men) associated with this incident. This blended with other diminished responsiveness to her external world (psychic numbing). Persistent symptoms of increased arousal manifested themselves especially in difficulty falling and staying asleep, hypervigilance, as well as exaggerated startle response. She experienced difficulty in concentration (i.e., work) and in completing tasks. She had underlying irritability with fears of losing control. [R] experienced dissociative symptoms of depression of mood and anxiety with anhedonia, change in lifestyle, emotional liability on occasion and psychological symptoms which proved to be transient." That [R]'s physician, George M. Rapier, M.D. stated the following in a letter dated February 27, 1992: "[R] was first treated by myself in September of 1985. I have been her physician since that time. I have been treating her since the episode of her rape while in Florida. Since that time she has had significant emotional disturbance with an anxiety and depressive disorder. For this disorder she required treatment with anti-depressant and anti-anxiety medications. She was also required referral to a psychologist for psychotherapy and has continued this on an ongoing basis." ⁷

Because the record contains evidence to support the trial court's ruling, the departure sentence on the sexual battery counts is affirmed.

Appellant further maintains that, although the trial court properly concluded that his commission of two armed robberies a week after committing the instant crimes constitutes a valid basis for departure, ⁸ such departure can be no greater than that which appellant could have received if the subsequent robberies had been scored on his guidelines scoresheet. To support this claim appellant cites to Puffinberger v. State, 581 So.2d 897 (Fla.1991).

In Puffinberger, appellant pled nolo contendere to aggravated child abuse. Appellant's guidelines scoresheet reflected three second-degree felony convictions for burglaries committed when he was a juvenile. When sentencing appellant for the child abuse charge, the trial court ruled that the three juvenile dispositions were unscorable because they occurred more than three years prior to the instant offense. The trial court, however, exceeded the guidelines based on the unscored burglaries. On appeal appellant argued that his juvenile record was not serious enough to warrant departure. In reviewing this argument the supreme court concluded that an unscored juvenile record is significant for departure purposes if the record is extensive or serious, or if the number and nature of the dispositions when considered in combination amount to a significant record under the circumstances. The court further ruled that a prior juvenile record

should serve as a basis for departure only where the resulting departure sentence is no greater than that which the defendant would have received had the juvenile offenses been scored.

Id., 581 So.2d at 899.

Appellant maintains that this ruling should be extended to cases where subsequent unscored crimes constitute the basis for departure, thereby prohibiting any departure which exceeds the guidelines sentence which could have been imposed had the subsequent offenses been scored. We disagree. In Puffinberger the appellant's prior juvenile burglary offenses were, by definition, "prior offenses" ⁹ and, thus, should have been scored as prior record on appellant's guidelines scoresheet but were not scored because they were committed more than three years prior to the instant offense. Consequently, it was reasonable for the court to limit the extent of a departure based on prior juvenile convictions to the sentence which would be proper if the convictions had been scored because the calculation of a guidelines sentence is intended to focus on appellant's conduct up to the time of sentencing. In contrast, here appellant's subsequent armed robberies do not constitute prior record because they were committed subsequent to the time that the instant offenses were committed. Because the commission of subsequent offenses is not relevant to the calculation of a guidelines sentence, we conclude that the guidelines do not constrain the trial court's discretion to impose a departure based on the commission of subsequent crimes.

In Wichael we affirmed a departure sentence which was based upon appellant's subsequent unscored criminal behavior, yet recognized the apparent anomaly in prohibiting subsequent offenses from being scored on the scoresheet but permitting such offenses to constitute a basis for an unlimited departure sentence:

It is somewhat anomalous to exclude later criminal convictions from scoring but to allow them to be considered in rendering a departure sentence which greatly exceeds (as in this case) the permissible sentencing guidelines bracket, if the scoring had been allowed. See Merriex v. State, 521 So.2d 249 (Fla. 1st DCA 1988). In devising an appropriate sentencing for specific conduct, the guidelines apparently try to limit the focus of the inquiry to the defendant's character and history up to that point in time, and not his or her later actions. However, departing for subsequent convictions defeats that focus or...