Marshall v. State, 84-1043
| Decision Date | 22 February 1985 |
| Docket Number | No. 84-1043,84-1043 |
| Citation | 10 Fla. L. Weekly 490,468 So.2d 255 |
| Parties | 10 Fla. L. Weekly 490 Tommy MARSHALL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Deborah K. Brueckheimer Asst. Public Defender, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
The appellant in this case was charged with and tried for kidnapping and sexual battery with a deadly weapon. He was convicted of the lesser included offense of sexual battery without a deadly weapon and was acquitted of kidnapping. The appellant appeals from the sentence imposed by the trial court. We reverse.
At sentencing the trial judge adjudicated the appellant an habitual offender pursuant to Section 775.084(1)(a)1.b, Florida Statutes. That statute requires, as our court has held in Coots v. State, 426 So.2d 1304 (Fla. 2d DCA 1983), two or more out-of-state convictions. The state presented evidence of only one out-of-state conviction at the sentencing hearing--a 1979 commercial burglary in Georgia. Although the appellant also had been arrested in Georgia for burglary and sexual battery, and those arrests resulted in the revocation of his probation, he was never convicted of those crimes. Therefore, he was improperly adjudicated an habitual offender.
In stating his reasons for departing from the sentencing guidelines, the trial court relied upon factors relating to the kidnapping and the use of a weapon in connection with the sexual battery. Reliance upon those factors was violative of Florida Rule of Criminal Procedure 3.701(d)(11), the Rule in effect at the time of sentencing, which stated that "[r]easons for deviating from the guidelines shall not include factors relating to ... [the] instant offense ... for which convictions have not been obtained."
The trial court, however, also included terrorization of the victim as a reason for departure. Psychological trauma inflicted upon the victim is a valid reason for departure. Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984). This one clear and convincing reason is sufficient to uphold the trial court's departure from the guidelines. Webster v. State, 461 So.2d 965 (Fla. 2d DCA 1984).
Because the trial court erroneously applied the habitual offender statute, we reverse and remand for sentencing in accordance with the guidelines. The trial court at that time however may chose...
To continue reading
Request your trial
-
Baker v. State
...v. State, 463 So.2d 564 (Fla. 2d DCA 1985) (five out of seven reasons for departure proper; sentence affirmed); Marshall v. State, 468 So.2d 255 (Fla. 2d DCA 1985) (one out of three reasons for departure proper; sentence reversed on other grounds). As did the courts in Brinson v. State, 463......
-
Hamilton v. State, 87-983
...Sloan v. State, 472 So.2d 488, 490 (Fla. 2d DCA 1985), approved in part, quashed in part, 491 So.2d 276 (Fla.1986); Marshall v. State, 468 So.2d 255 (Fla. 2d DCA 1985), rev. denied, 472 So.2d 1181 (Fla.1985); Tuthill v. State, 518 So.2d 1300 (Fla. 3d DCA 1987), rev. granted, Case No. 72,096......
-
Ponder v. State, BR-492
...determination to depart from the presumptive sentence." We therefore find the reason an invalid basis for departure. See Marshall v. State, 468 So.2d 255 (Fla.2d DCA), review denied, 472 So.2d 1181 (Fla.1985). (emphasis In Sloan v. State, 472 So.2d 488 (Fla.2d DCA 1985), and Marshall v. Sta......
-
Allen v. State, 84-1962
...impermissible reasons for aggravating appellant's sentences. Von Carter v. State, 468 So.2d 276 (Fla. 1st DCA 1985), Marshall v. State, 468 So.2d 255 (Fla. 2d DCA 1985), Banzo v. State, 464 So.2d 620 (Fla. 2d DCA 1985), Fletcher v. State, 457 So.2d 570 (Fla. 5th DCA 1984) (cases holding tha......