Konyves v. State, 86-1577

• Decision Date: 21 January 1987
• Docket Number: No. 86-1577,86-1577
• Citation: 12 Fla. L. Weekly 340,501 So.2d 127
• Parties: 12 Fla. L. Weekly 340 Lawrence Thomas KONYVES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 127

501 So.2d 127

12 Fla. L. Weekly 340

Lawrence Thomas KONYVES, Appellant, v. STATE of Florida, Appellee.

No. 86-1577.

District Court of Appeal of Florida Second District.

Jan. 21, 1987.

Roger A. Alcott, Lakeland, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Davis G. Anderson, Asst. Atty. Gen., Tampa, for appellee.

RYDER, Acting Chief Judge.

Lawrence Konyves, appellant, was charged with armed robbery and injuring a police dog. On March 11, 1986, he pled guilty to the armed robbery charge and proceeded to escape from custody by walking out of the courtroom. He was subsequently charged with escape. Upon being apprehended, he pled guilty to the escape charge. The trial court prepared a scoresheet for both the armed robbery and escape charges.

At the sentencing hearing, the victim of appellant's armed robbery testified as to the emotional trauma she suffered from appellant's acts. She also stated that this was the second time she was the victim of a robbery.

The sentencing guidelines recommended sentence was three and one-half to four and one-half years. The trial court departed from the sentencing guidelines sentencing appellant to seven years with a minimum mandatory of three years. The trial court provided two reasons for its departure. They were:

(1) The defendant's use of a gun in the commission of an armed robbery resulted in an emotional trauma to the victim who changed her job as a result and caused her employer to be threatened with a lawsuit as a result of the manner in which she handled her fear which was created by the defendant.

(2) There appears to be minimal hope for rehabilitation as the defendant has been convicted of an escape occurring immediately as he left the courtroom after entering a plea to this charge.

On appeal, appellant argues that the trial court erred in departing from the sentencing guidelines. We agree. We reverse and remand this case for resentencing within the sentencing guidelines.

We have found that emotional trauma is a proper ground for departure from the sentencing guidelines. Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985); Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984); Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984). However, the emotional trauma must arise from extraordinary circumstances which are clearly not inherent in the offense charged. Casteel v. State, 498 So.2d 1249 (Fla.1986); Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA 1986). In Tompkins, in a factually similar situation, we held that the trial court improperly departed from the sentencing guidelines where it departed because of the rape, kidnapping, and armed robbery victim's inability to continue working in her past job. After reviewing the record, we held that the psychological trauma to the victim was not greater than that usually associated with the crimes committed. We stated that "[the] sentencing guidelines have produced the functional concept of a routine rape, kidnapping, and armed robbery" and that the facts of that case would not support departure.

After reviewing the facts in the instant case, we are convinced that the victim's emotional trauma was not extraordinary. In fact, the victim's emotional trauma was less than that suffered by the Tompkins victim. The trial court, therefore, improperly departed from the sentencing guidelines.

The trial court also improperly departed from the sentencing guidelines because of appellant's lack of...