Kokx v. State, BH-249

Decision Date20 November 1986
Docket NumberNo. BH-249,BH-249
Parties11 Fla. L. Weekly 2442 Timothy E. KOKX, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

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 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 aggravated child abuse. We are loathe to extend the Supreme Court's Lerma rationale to aggravated child abuse cases. To say that emotional trauma is inherent in almost every sexual battery case is one thing, understanding that every sexual battery offense must, of necessity, involve the:

"oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object...."

Section 794.011(1)(h), Florida Statutes. 2 By contrast, examination of the aggravated child abuse statute and its necessary interplay with the aggravated battery statute reveals that one can engage in conduct which constitutes aggravated child abuse but which is, at least by comparison with sexual battery, relatively minor. A hypothetical will serve to illustrate the point. Assume that an 18-year old young man intentionally touched a 17-year old young man against the will of the latter. Such would be a simple battery under Section 784.03(1)(a), Florida Statutes. If the 18-year old used a deadly weapon, he would have been deemed to have committed an aggravated battery under Section 784.045(1)(b)...

To continue reading

Request your trial
9 cases
  • Zordan By and Through Zordan v. Page, 85-2055
    • United States
    • Florida District Court of Appeals
    • December 19, 1986
    ...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
    • United States
    • Florida District Court of Appeals
    • June 23, 1987
    ...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......
  • Allstate Ins. Co. v. Thomas, CIV-87-522-B.
    • United States
    • U.S. District Court — Western District of Oklahoma
    • April 27, 1988
    ...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, BM-391
    • United States
    • Florida District Court of Appeals
    • February 16, 1987
    ...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......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT