Lawson v. State, BG-258

• Decision Date: 25 November 1986
• Docket Number: BG-487,No. BG-258,BG-258
• Citation: 11 Fla. L. Weekly 2482,498 So.2d 541
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 2482 Alexander LAWSON, Appellant, v. STATE of Florida, Appellee. &

Page 541

498 So.2d 541

11 Fla. L. Weekly 2482

Alexander LAWSON, Appellant, v. STATE of Florida, Appellee.

No. BG-258 & BG-487.

District Court of Appeal of Florida First District.

Nov. 25, 1986.

Michael E. Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Norma J. Mungenast, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Alexander Lawson appeals from sentences imposed for three counts of burglary of a dwelling, one count of sexual battery and a violation of probation on a sale of cannabis offense. Appellant asserts that the trial court erred in departing from the recommended guidelines sentence based on the emotional trauma of the victims. Appellant also contends that the court erred in ordering appellant to pay $150.00 in restitution, an amount which was stolen during an incident of burglary to which appellant pled guilty. We affirm.

While on probation for the offense of sale of cannabis, appellant committed several substantive offenses in violation of his probation, all within a three month time span. The cases are consolidated for this appeal. Appellant was charged with three counts of burglary within a dwelling, sexual battery, grand theft, battery, and violation of probation. Appellant entered pleas of nolo contendere to all three burglaries and the sexual battery. He also pled guilty to violation of probation. In exchange for appellant's pleas of nolo contendere, the state agreed to nolle prosse the grand theft and battery charges and not to seek a sentence greater than 20 years.

The judge sentenced appellant to four fifteen year prison sentences, all to run concurrently; three sentences of 15 years for the burglary convictions, and one 15 year sentence for the second degree felony of sexual battery. Also appellant was sentenced to three years incarceration on the initial violation of probation to run concurrently with the 15 year sentences. The trial court found that appellant fit the criteria of a mentally disordered sex offender and ordered that appellant receive the appropriate treatment while he is with the Department of Corrections. In addition to custodial sentences, the court ordered appellant to pay $150.00 as restitution to the victim from whom he stole the money.

Appellant urges that the trial court erred in departing from the guidelines. Appellant states that the recommended range was from 5 1/2 years to 7 years. We note however, that in the transcript of the sentencing hearing the state took issue with that range and stated that the scoresheet should have been figured with the sexual battery conviction as the primary offense which would have made the range of sentence 9 to 12 years. Regardless of which range would have resulted from a correct scoresheet, the trial court departed and gave the following reason:

Emotional trauma suffered by the victims who have made known their fear and emotional distress resulting from and as a consequence of the criminal acts of the Defendant. The foregoing reason is not encompassed within the scoring factors to be considered by the court in calculating the range or sentence under the sentencing guidelines.

Appellant argues that the court's departure based on emotional trauma is improper since such trauma is inherent in the crimes charged. However, the Florida Supreme Court in Hankey v. State, 485 So.2d 827 (Fla.1986) has determined that emotional hardships on the victim may allow departure as long as the facts supporting the reason are credible and proven beyond a reasonable doubt. Id. at 828. The record supports the state's assertion that one of the victims experienced a severely traumatic ordeal in which she submitted to sexual intercourse two times with appellant in fear of her safety as well as that of her fourteen year old daughter. As a result, the victim suffered internal hemorrhaging and while defendant slept, she fled to the window ledge of their second story building with her daughter to escape and seek help. When the police spotted the victim, she was nude, bleeding and hysterical and had to be stopped from jumping off the ledge. The daughter was involved in these events and was a witness to her mother's hysteria. The record reveals that the victims of defendant's other offenses also suffered emotional trauma. Appellant, after breaking and entering the second victim's home at night, stroked her while she was on her couch, pretending to be asleep. When he went into another room she fled for safety. Appellant broke into this victim's house a second time when her teenage daughter and girlfriend were home, at which point the victim threatened to shoot appellant to protect herself and the girls. Evidence of the victim's trauma was presented not only at the sentencing hearing but also at the plea hearing where appellant entered his pleas based on the above facts.

This court has consistently held that emotional trauma suffered by the victim justifies a departure from the recommended guidelines sentence. See, for example, Bailey v. State, 492 So.2d 738 (Fla. 1st DCA 1986); Stewart v. State, 489 So.2d 176 (Fla. 1st DCA 1986); Wright v. State, 487 So.2d 1176 (Fla. 1st DCA 1986); Brooks v. State, 487 So.2d 68 (Fla. 1st DCA 1986), 487 So.2d 68 rev. denied, Brooks v. State, 494 So.2d 1149 (Fla.1986); Davis v. State, 489 So.2d 754 (Fla. 1st DCA 1986); Crapps v. State, 483 So.2d 544 (Fla. 1st DCA 1986); and Casteel v. State, 481 So.2d 72 (Fla. 1st DCA 1986). We have determined that in the case before us, the facts supporting the trial court's reason for departure are credible and were proven beyond a reasonable doubt. Hankey. We observed that neither psychological nor emotional trauma is a requisite element of the offenses of sexual battery or burglary of a dwelling, unlike the offense of aggravated assault where an essential element of the crime is that the defendant creates a "well founded fear" in the victim. See, State v. Cote, 487 So.2d 1039 (Fla.1986). Also, we have read Lerma v. State, 497 So.2d 736 (Fla.1986) where the Florida Supreme Court held that "emotional hardship can never constitute a clear and convincing reason to depart in a sexual battery case because nearly all sexual battery cases inflict emotional hardship on the victim". At 73...