Kokx v. State, No. BH-249
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | NIMMONS |
| Citation | 498 So.2d 534,11 Fla. L. Weekly 2442 |
| Parties | 11 Fla. L. Weekly 2442 Timothy E. KOKX, Appellant, v. STATE of Florida, Appellee. |
| Docket Number | No. BH-249 |
| Decision Date | 20 November 1986 |
Page 534
v.
STATE of Florida, Appellee.
First District.
Rehearing Denied Jan. 6, 1987.
John C. Harrison, Shalimar, for appellant.
John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
NIMMONS, Judge.
Kokx appeals from a judgment and sentence entered pursuant to his plea of nolo contendere to a charge of aggravated child abuse. Kokx argues, inter alia, that the trial court's reliance on improper reasons for departure from the recommended guidelines sentence entitles him to resentencing. We affirm in part, and reverse in part.
Instead of imposing the recommended guidelines sentence of community control or 12-30 months incarceration, the trial judge imposed a sentence of ten years imprisonment. His reasons for departure were:
1. The victim was only three years of age and is apparently emotionally scarred from the incident, probably permanently;
2. The defendant has evidenced no remorse for the crime; and
3. Evidence indicated that the abuse occurred on more than one occasion.
The second and third reasons have been held to be improper reasons for departure. See e.g., State v. Mischler, 488 So.2d 523 (Fla.1986); Hunt v. State, 468 So.2d 1100 (Fla. 1st DCA 1985). The first reason requires
Page 535
discussion in view of the Supreme Court's recent decision in Lerma v. State, 497 So.2d 736, (Fla.1986).In Lerma the defendant was convicted of sexual battery. One of the reasons given by the trial judge for guidelines departure was the emotional trauma suffered by Lerma's victim. In reversing, the Supreme Court, while acknowledging that it has recently recognized in a burglary case 1 that emotional hardship may be a valid reason for guidelines departure where the facts sufficiently support such finding, distinguished Lerma on the basis of the nature of the crime charged, the Court stating that nearly all sexual battery cases inflict emotional hardship on the victim. One may debate the question of whether the Supreme Court in Lerma meant to announce a per se rule that a trial judge may never, regardless of the severity of emotional trauma and scarring inflicted by a rapist on his victim, rely upon such emotional trauma and scarring for departure. However, we need not decide whether Lerma was intended to be so read because the defendant in the instant case was charged with and pled nolo contendere to...
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Zordan By and Through Zordan v. Page, No. 85-2055
...results from any sexual child abuse is inconsistent with language in the recent opinion of the First District in Kokx v. State, 498 So.2d 534 (Fla. 1st DCA 1986) with which we agree. Kokx dealt with the validity of a trial court's reason for an upward departure from the sentencing guideline......
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Jaggers v. State, No. BQ-95
...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, Page 1168 unlike the instant case, the defendant pled guilty to aggravated child ......
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Allstate Ins. Co. v. Thomas, No. CIV-87-522-B.
...in other states centered on the absence of a claim of penetration or threatened violence. Id. at 610-611.2 Relying on Kokx v. State, 498 So.2d 534 (Fla.Dist.Ct.App.1986), disapproved, Barrentine v. State, 521 So.2d 1093, (Fla. 1988),3 the court held that serious psychological injury does no......
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Vogtsberger v. State, No. BM-391
...which prohibits the use of factors relating to the instant offense for which convictions have not been obtained. Kokx v. State, 498 So.2d 534 (Fla. 1st DCA 1986) and Dowling v. State, 495 So.2d 874 (Fla. 5th DCA Last, appellant presents two arguments in support of her contention that the tr......
-
Zordan By and Through Zordan v. Page, No. 85-2055
...results from any sexual child abuse is inconsistent with language in the recent opinion of the First District in Kokx v. State, 498 So.2d 534 (Fla. 1st DCA 1986) with which we agree. Kokx dealt with the validity of a trial court's reason for an upward departure from the sentencing guideline......
-
Jaggers v. State, No. BQ-95
...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, Page 1168 unlike the instant case, the defendant pled guilty to aggravated child ......
-
Allstate Ins. Co. v. Thomas, No. CIV-87-522-B.
...in other states centered on the absence of a claim of penetration or threatened violence. Id. at 610-611.2 Relying on Kokx v. State, 498 So.2d 534 (Fla.Dist.Ct.App.1986), disapproved, Barrentine v. State, 521 So.2d 1093, (Fla. 1988),3 the court held that serious psychological injury does no......
-
Vogtsberger v. State, No. BM-391
...which prohibits the use of factors relating to the instant offense for which convictions have not been obtained. Kokx v. State, 498 So.2d 534 (Fla. 1st DCA 1986) and Dowling v. State, 495 So.2d 874 (Fla. 5th DCA Last, appellant presents two arguments in support of her contention that the tr......