Robinson v. State, 90-2639
| Citation | 589 So.2d 1372 |
| Decision Date | 20 November 1991 |
| Docket Number | No. 90-2639,90-2639 |
| Parties | Lorraine ROBINSON, Appellant, v. STATE of Florida, Appellee. 589 So.2d 1372, 16 Fla. L. Week. D2911 |
| Court | Court of Appeal of Florida (US) |
Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant contends the trial court erred in departing from the recommended sentencing guidelines. We agree and reverse.
Appellant was charged by indictment with the first-degree murder of her seventeen-day-old infant and with aggravated child abuse. Both charges were based on the same acts, as the aggravated child abuse culminated in the infant's death. Pursuant to a plea agreement that the state would recommend a sentence within the permissive guideline range, appellant entered pleas of nolo contendere to the lesser crime of second-degree murder and to aggravated child abuse.
The state then informed the court and appellant that it could not honor the plea agreement and successfully sought an order granting appellant the right to withdraw the plea, over appellant's objection to voiding the parties' plea agreement.
At the sentencing hearing--appellant choosing not to withdraw her plea--the medical examiner testified that the seventeen-day-old baby died of blunt trauma to the head. In addition he identified repetitive biting injuries to the baby's face and cheek area and blunt non-penetrating injuries to the baby's buttocks (spanking). There was no evidence that the injuries to the brain were caused by anything other than a hand.
The lead investigative detective on the case testified that appellant admitted to striking the baby numerous times, spanking her for soiling her diapers, hitting her on the head and body when she would cry during the night and biting her on the cheeks. Appellant admitted to her that the actions occurred on a daily basis from the time the baby was released from the hospital, but indicated to her that she did not mean to hurt the baby. When paramedics arrived, appellant was clutching her baby daughter and was hysterical when they tried to take the baby.
The trial court sentenced appellant on the aggravated child abuse count to fifteen years, a sentence within the recommended guidelines. On the second-degree murder count, the trial court sentenced appellant to sixty years, a sentence exceeding the permissive range of twenty-two years, for which departure sentence it entered written reasons. Appellant appeals these reasons as invalid and her sentence as illegal.
The trial court handwrote as its reasons for departure the following:
1. Age related vulnerability is a substantial factor to establish a clear & convincing reason to depart when combined with other factors as stated in Wemett v. State, 15 FLW S423 [567 So.2d 882 (Fla.1990) ]; here the victim was only 17 days old; this tender aged victim was totally dependent on its mother, the defendant, for its survival. This creates a substantial difference in this victim & the victim in Wemett;
2. The relationship between the victim and defendant; mother & child create a substantial factor to depart; the Def. was the sole available guardian of the victim's welfare; it was a position of trust, a familial relationship under which the victim was at the mercy of the mother/def.; to violate this relationship in the brutal manner in which it was violated constitutes an extraordinary & egregious criminal act.
3. The criminal act in this case is so barbaric & grotesque that it truly shocks the conscience; the victim was beaten daily by her mother/def., the 12 days the child spent with the Def. were days of consistent blows to the victim causing the subdural bleeding of the skull; the child was bleeding from the nose & the defendant continued to beat the victim & not obtain medical attention; this 20 year old mother beat the child because the infant soiled its diapers & cried. This is a savage unmitigated beating to death of a 17 day old baby by the Def.
Age-related vulnerability alone is an insufficient reason to depart. Wemett v. State, 567 So.2d 882 (Fla.1990); Lettman v. State, 526 So.2d 207 (Fla. 4th DCA 1988), rev. denied, 544 So.2d 1025 (Fla.1989). However, the supreme court stated in Wemett that it might be possible for a trial court to...
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Small v. State, 94-1342
...barbaric and grotesque circumstances. 526 So.2d at 208 (emphasis added). The facts in Lettman are discussed in Robinson v. State, 589 So.2d 1372, 1374 (Fla. 4th DCA 1991), rev. denied, 599 So.2d 1280 [T]he briefs reveal that the victim had been beaten with a belt repeatedly over a long peri......
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Gonzalez v. State, 92-0402
...on this issue. Finally, we do agree with appellant that the trial court erred in departing from the guidelines. See Robinson v. State, 589 So.2d 1372 (Fla. 4th DCA1991), rev. denied, 599 So.2d 1280 (Fla.1992); Lettman v. State, 526 So.2d 207 (Fla. 4th DCA1988), rev. denied, 544 So.2d 1025 A......
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Harris v. State, 85297
...also be used as reasons to depart from the sentencing guidelines. See State v. Mischler, 488 So.2d 523 (Fla.1986); Robinson v. State, 589 So.2d 1372 (Fla. 4th DCA), review denied, 599 So.2d 1280 (Fla.1992); Harris v. State, 533 So.2d 1187 (Fla. 2d DCA 1988). These cases stand for the reason......