Mora v. State, 86-1112
| Decision Date | 21 October 1987 |
| Docket Number | No. 86-1112,86-1112 |
| Citation | 515 So.2d 291,12 Fla. L. Weekly 2469 |
| Parties | 12 Fla. L. Weekly 2469 Ignacio MORA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellee.
The appellant, Ignacio Mora, appeals the sentence imposed by the trial court. We reverse.
The appellant was charged with burglary with assault or battery in violation of section 810.02, Florida Statutes (1983), and sexual battery in violation of section 794.011(5), Florida Statutes (1983). After a nonjury trial, the trial court found the appellant guilty of the burglary with assault or battery charge but not guilty of the sexual battery charge. The trial court departed from the presumptive guidelines sentence of three years and imposed a sentence of ten years. This court subsequently found that the trial court's written reasons for departure were invalid, reversed the sentence, and remanded the case for resentencing. See Mora v. State, 484 So.2d 621 (Fla. 2d DCA 1986).
Upon remand, the trial court imposed a departure sentence of ten years imprisonment based upon the following written reasons:
1. In the course of the Burglary, the Defendant repeatedly assaulted or battered the victim Brenda Wiley.
2. The assaults or batteries included kissing and touching the victim in a sexual manner, undressing her and making sexual advances. This Defendant violated not only the privacy of the victim's home but her sexual privacy as well.
3. The Defendant's multiple batteries followed active attempts of the victim to hide from or to escape from her assailant. The Defendant terrorized the victim over an extended period of both time and space causing psychological trauma not considered directly by guideline scoring.
4. The Defendant's actions took place while small children were present in the home and, in fact as to one child, in the same bed. During the course of the assault several children were awaken [sic] and were made aware of the distress of the victim. Testimony at trial clearly demonstrated that these vulnerable children were placed in extreme fear. These events added dramatically to the psychological trauma experienced by the victim Brenda Wiley throughout the course of the burglary.
5. In view of these unusual factors the recommended guideline sentence of three years is woefully inappropriate for the nature and severity of the particular crime.
In this timely appeal, the appellant contends that the trial court's new reasons for departure are invalid. We find that the departure sentence imposed by the trial court was based upon both valid and invalid reasons.
The appellant was convicted of burglary with assault or battery. An element of that offense is that the defendant must have made an assault or battery during the course of the burglary. See § 810.02(2)(a). The trial court's first reason, therefore, improperly considers an inherent element of the crime of which the appellant was convicted. See State v. Mischler, 488 So.2d 523 (Fla.1986). Furthermore, in order to convict a defendant of burglary with assault or battery, the state may satisfy the assault or battery element with proof, beyond a reasonable doubt, of a single assault or battery. Thus, the acts described in the first, second, and third reasons which constitute additional assaults and batteries upon the victim cannot justify the departure sentence imposed here because these acts constitute separate crimes of which the appellant was never charged or convicted. See Fla.R.Crim.P. 3.701(d)(11); State v. Tyner, 506 So.2d 405 (Fla.1987).
Although the trial court clearly relied on invalid reasons, we find that the...
To continue reading
Request your trial
-
Felts v. State
...guidelines sentence. State v. Rousseau, 509 So.2d 281 (Fla.1987); Whitfield v. State, 515 So.2d 360 (Fla. 4th DCA 1987); Mora v. State, 515 So.2d 291 (Fla. 2d DCA 1987); Crouse v. State, 518 So.2d 287 (Fla. 2d DCA Sept. 16, 1987); Harris v. State, 509 So.2d 1299 (Fla. 1st DCA 1987); Hipp v.......
-
Allison v. State
...So.2d 1249 (Fla.1986). See also Vara v. State, 546 So.2d 1071 (Fla. 2d DCA), review denied, 554 So.2d 1169 (Fla.1989); Mora v. State, 515 So.2d 291 (Fla. 2d DCA 1987). In this case there was substantial evidence in the record, both from pretrial hearings and trial testimony, that the four-y......
-
Vara v. State, 87-03355
...Id. citing Casteel v. State, 498 So.2d 1249 (Fla.1986), and State v. Mischler, 488 So.2d 523 (Fla.1986); see also, Mora v. State, 515 So.2d 291 (Fla. 2d DCA 1987). The trial court had the children's victim impact statements before it and could find, based upon these statements and the facts......
-
Helm v. State, 88-441
...for psychiatric care. See State v. Rousseau, 509 So.2d 281 (Fla.1987); Casteel v. State, 498 So.2d 1249 (Fla.1986); Mora v. State, 515 So.2d 291 (Fla. 2d DCA 1987). That, as defendant argues, there was no showing that the baby witnessed the crime is not determinative. See Casteel, 498 So.2d......