Jaggers v. State

Citation12 Fla. L. Weekly 1528,509 So.2d 1165
Decision Date23 June 1987
Docket NumberNo. BQ-95,BQ-95
Parties12 Fla. L. Weekly 1528 Daniel F. JAGGERS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

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

Robert A. Butterworth, Atty. Gen. and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Daniel F. Jaggers appeals his 15 year prison sentence for a conviction of lewd and lascivious assault upon a child. He argues that the trial court erred in sentencing him by departing from the sentencing guidelines recommendation of 12-30 months incarceration or community control. We agree and reverse.

This is the second time that Jaggers has appealed the sentence for this conviction. In Jaggers v. State, 492 So.2d 418 (Fla. 1st DCA 1986), this court reversed appellant's 15 year sentence because there was no evidence that the trial court relied upon a sentencing scoresheet before imposing appellant's sentence.

Appellant was resentenced on October 3, 1986. The scoresheet originally totalled 293 points. The correct point total was assessed as 183 points which called for a sentence of community control or 12 to 30 months. (The parties stipulated that 80 points previously assessed for a prior similar sex charge in Missouri should be deleted from the scoresheet because appellant was never convicted of that crime. Also 30 more points were deleted because appellant was not under legal constraint at the time of his most recent offense.) At the resentencing hearing, the prosecutor entered into evidence records showing that appellant had been charged with a prior sex crime in Missouri and had been civilly committed to a mental health institution and then later released under supervision. The court also took judicial notice of a psychiatric expert's deposition and appellant's medical records which had been used at the original trial and prior sentencing hearing. Also at the resentencing hearing the victim's mother testified as to her daughter's trauma and continuing fears which resulted from appellant's action. The mother also testified that her daughter indicated that appellant had touched her other times as well. Such testimony was entered over appellant's objection that it constituted hearsay.

Appellant, while serving in Vietnam, suffered physical injury to his head and brain. He has been diagnosed as having organic personality syndrome which is an impulse disorder, not a sexual disorder. His testimony was corroborated by the psychiatrist's opinion, Dr. Zeitouni, who treated appellant at a Veteran's Administration Hospital. Appellant asserted that he did not have pedophelia as charged by the state and that his neurological damage was in remission due to medication. Further, he asserted that he had learned to control his impulses. The State proffered expert testimony of Dr. Zeitouni which revealed that in his opinion, every time appellant saw a girl he would be inclined to molest the child if there was no one there to stop him, for appellant is like a "car without brakes". The court again imposed a 15 year sentence granting credit for time served. The court entered a written order listing its guidelines departure reasons. 1

We agree with appellant that the trial court's fourth reason for departure amounts to nothing more than dissatisfaction with the guidelines sentence and is invalid according to Williams v. State, 492 So.2d 1308 (Fla.1986) and Scurry v. State, 489 So.2d 25 (Fla.1986).

We also find the court's third reason for departure, mental trauma to the six year old victim, invalid given the facts of this case. The trial court based this reason for departure on the testimony of the child and the child's mother. (The record now before this court does not include the child's testimony given at the original sentencing hearing). The facts recited by the parties in the briefs from their first appeal reveal that appellant had been invited into the victim's home by the mother and while the victim and other children were in the living room watching television in their nightgowns, the victim's mother turned around in time to hear her daughter tell appellant "stop that", and pull down her nightgown. The victim then returned to watching television. When the mother took her daughter into the bedroom and asked what had occurred, the victim responded that appellant had lifted her nightgown and licked her. Appellant denied his actions when confronted. For this action 20 points were properly assessed on appellant's score sheet for victim injury, under "contact but no penetration". See Florida Rule Criminal Procedure 3.701(d)(7); Moore v. State, 469 So.2d 947 (Fla. 5th DCA 1985), quashed on other grounds, 489 So.2d 1130 (Fla.1986); O'Bright v. State, 508 So.2d 385 (Fla. 1st DCA 1987).

The only evidence before this court concerning the child's resulting trauma is recited by the mother in the most recent sentencing hearing transcript (the only transcript provided). When questioned about how appellant's act affected the child's life over the last five years, the mother reported that at first the child had recurring nightmares, nausea, general fear of strangers, and headaches, which, according to the mother, were documented at her school. Also according to the mother, her daughter got her black belt in Tae Kwon Do so nobody will hurt her again. (The victim is now 10 years old).

As the state contends, this court has recently distinguished the supreme court's holding in Lerma v. State, 497 So.2d 736 (Fla.1986), wherein the court stated that psychological trauma can never be used to depart in a sexual battery case, as being inapplicable to prosecutions under section 800.04 Florida Statutes. However we find these recent cases to be distinguishable as they involved violent physical and sexual assaults, unlike the instant case. In Kokx v. State, 498 So.2d 534 (Fla. 1st DCA 1986), this court refused to follow Lerma where unlike the instant case, the defendant pled guilty to aggravated child abuse, not lewd and lascivious assault. In Barrentine v. State, 504 So.2d 533 (Fla. 1st DCA 1987), appellant was convicted of lewd and lascivious assault upon a child in violation of section, 800.04 Florida Statutes, as in the instant case. However unlike the instant case, in Barrentine, the 14 year old male victim was violently assaulted in the woods and as a result suffered public humiliation, ran away from home, and was suspended from school. This court found that the requisite standard of proof for the factual finding supporting departure was present in Barrentine. But from the record in the instant case, we do not find that such emotional hardship on the victim has been proven beyond a reasonable doubt. Hankey v. State, 485 So.2d 827, 828 (Fla.1986), appeal after remand, 505 So.2d 701 (Fla.1987). See also State v. Rousseau, 509 So.2d 281 (Fla.1987). Further, we find Thomas v. State, 501 So.2d 752 (Fla. 5th DCA 1987), Casteel v. State, 498 So.2d 1249 (Fla.1986) and Connell v. State, 502 So.2d 1272 (Fla. 2d DCA 1987) distinguishable as involving sexual battery convictions, unlike the instant case.

In the court's second departure reason, the judge states that because appellant cannot control his problem, and community control has failed, appellant should be sentenced to 15 years in prison because "the public, especially young children, has a right to be protected from a criminal who cannot or will not be rehabilitated". As the state contends, in Scobee v. State, 488 So.2d 595 (Fla. 1st DCA 1986), and Sarvis v. State, 465 So.2d 573 (Fla. 1st DCA 1985), the courts' departure reasons which effectively stated that "appellant's chances of being rehabilitated are nil", were deemed insufficient because no explanation as to why appellant could not be rehabilitated was given. In the instant case the court bases its similar conclusion on expert testimony and appellant's history of being treated for his mental illness as a "criminally sexual psychopath". However the state cites no cases to support this basis for departure, and our research has failed to reveal any cases where this state's sentencing guidelines overlap with procedures for civil commitments to mental institutions.

However, recently in Williams III v. State, 504 So.2d 392 (Fla.1987), the supreme court reviewed Williams III v. State, 484 So.2d 71 (Fla. 1st DCA 1986) in light of Hendrix v. State, 475 So.2d 1218 (Fla.1985). In Williams initially the trial court departed from the guidelines based on Williams' extensive criminal history which was described in the departure reasons, concluding that "there is no hope for rehabilitation of this individual". 484 So.2d at 72. Further, the trial court found that punishment for Williams' conduct should be substantially greater to protect society and deter him from future criminal activities. This court affirmed the trial court's sentence. The supreme court agreed with this court's conclusion that the trial court's reasons were substantially more than mere reference to appellant's prior record. "Neither the continuing and persistent pattern of criminal activity, or the timing of each offense in relation to prior offenses and release from incarceration or supervision, are aspects of a defendant's prior criminal history which are factored in to arrive at a presumptive guidelines sentence. Therefore there is no prohibition against basing a departure sentence on such factors." 504 So.2d at 393.

However, in Jones v. State, 501 So.2d 665 (Fla. 1st DCA (1987) this court found:

Entries in criminal histories which show no disposition, disposition unknown, arrest only or other non-conviction disposition shall not be scored. Fla.R.Crim.P. 3.701(d)(5)(a)(1). Nor can such entries be considered clear and convincing reasons for departure. See Weems v. State, 469 So.2d at 130 [ (Fla.1985) ]".

Jones at 667. (emphasis supplied).

Here, appellant's...

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