Ochoa v. State, 84-1849
| Decision Date | 09 October 1985 |
| Docket Number | No. 84-1849,84-1849 |
| Citation | 476 So.2d 1348,10 Fla. L. Weekly 2337 |
| Parties | 10 Fla. L. Weekly 2337 Jorge OCHOA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gerald W. Medeiros, Lakeland, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
Defendant pled guilty to the charges of kidnapping with the use of a firearm and one count of armed robbery. The presumptive range under the sentencing guidelines was between nine and twelve years. The trial court departed from the guidelines and sentenced defendant to forty years in state prison. On appeal defendant challenges the sentence contending that the trial court's departure from the presumptive sentence was not based on valid, clear, and convincing reasons.
In stating its reasons for departure, the trial court cited the traumatic nature of the offense and the incalculable impact upon the victim. This reason has in itself been deemed by this court to be a valid reason for departure. Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984). The trial court also cited a reason for departure which was of dubious validity; i.e., that had the victim not freed himself the defendant would have murdered him.
In Albritton v. State, 476 So.2d 158 (Fla.1985), the supreme court recently held that a departure from the guidelines based upon both valid and invalid reasons is reversible, unless it can be shown beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence.
It is amply evident that the trial court's main concern in its departure from the guidelines was the psychological trauma inflicted upon the victim and his family. Judge Green went into great detail in setting forth the traumatic effects upon the victim and his family; and it is evident, beyond a reasonable doubt, that eliminating the invalid reasons, Judge Green would have entered the same sentence.
In Albritton the supreme court further stated: "An appellate court reviewing a departure sentence should look to the guidelines sentence, the extent of the departure, the reasons given for the departure, and the record to determine if the departure is reasonable." Id. at 160.
We find that due to the emphasis placed upon the victim's psychological trauma set forth in the reasons for the departure and in light of the record in this case that the departure is reasonable.
In view of the ruling in Albritton...
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...(Fla. 4th DCA Feb. 5, 1986) [11 F.L.W. 340]; Tompkins v. State, No. 85-266 (Fla. 2d DCA Feb. 14, 1986) [11 F.L.W. 438]; Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985); Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985); and Crappa [Crapps ] v. State, Nos. BC-151 and ABC-334 (Fla. 1st DCA ......
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Booker v. State
...question certified to us by the Second District Court of Appeal in this case was previously certified by that court in Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985). In our decision in Ochoa (Ochoa v. State, 509 So.2d 1115 (Fla.1987)), we did not address the certified question. After ac......
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Williams v. State, 85-1920
...3.701.d.11.3 Hankey v. State, 485 So.2d 827 (Fla.1986) (dictum); Brooks v. State, 487 So.2d 68 (Fla. 1st DCA 1986); Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985); Knowlton v. State, 466 So.2d 278 (Fla. 4th DCA 1985) (dictum), review denied, 476 So.2d 675 (Fla.1985).4 Seven different off......
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Parsons v. State, 85-2520
...trauma has been found to be a valid reason for departure. Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA 1986); Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985). However, we find no support in the record for the conclusion that the victim sustained substantial or unusual psychological or em......