State v. Krueger, 94-2559

• Decision Date: 22 November 1995
• Docket Number: No. 94-2559,94-2559
• Citation: 664 So.2d 26
• Parties: 20 Fla. L. Weekly D2570 The STATE of Florida, Appellant, v. Alan KRUEGER, Appellee.
• Court: Florida District Court of Appeals

Page 26

664 So.2d 26

20 Fla. L. Weekly D2570

The STATE of Florida, Appellant, v. Alan KRUEGER, Appellee.

No. 94-2559.

District Court of Appeal of Florida Third District.

Nov. 22, 1995.

Robert A. Butterworth, Attorney General, and Keith S. Kromash, for appellant.

Alan A. Karten, Miami, for appellee.

Before SCHWARTZ, C.J., and NESBITT and COPE, JJ.

PER CURIAM.

In 1990, Alan Krueger entered pleas of nolo contendere to six counts of lewd assault. The trial court adjudicated Krueger guilty as to all counts and sentenced him to a year and one day of state prison to be followed by fifteen years of probation, with the first two years of probation treated as community control, all sentences to be served concurrently. In November 1991, following affidavits of violation of probation filed by Krueger's probation supervisor, the trial court determined that Krueger had violated the conditions of his probation by using marijuana and cocaine, by failing to comply with all instructions given to him by his community control officer, and by failing to remain confined to his approved residence. The trial court modified Krueger's probation by imposing six months of county jail to be followed by one year of community control with thirteen years of probation. Thereafter, in May of 1994, Krueger's probation supervisor again filed affidavits of violation of probation as to each of Krueger's cases. After a hearing, the trial court revoked Krueger's probation. The state here appeals the downward departure sentence the court then ordered. We vacate the sentence and remand for re-sentencing.

The affidavits of violation of probation against Krueger alleged that he had violated his probation by exposing his sexual organs in public and by possessing marijuana. At the hearing which followed, an officer testified that he had observed Krueger behind a line of hedges. As children leaving a nearby school walked and rode by, Krueger had pulled his penis out of his shorts and begun masturbating. A second officer called to the scene confirmed these observations. That officer also explained that subsequent to Krueger's arrest, the officer had found marijuana in Krueger's car.

The state pointed out that Krueger had previously violated probation and been given a downward departure sentence. The state recommended a seventeen-year sentence followed by a term of probation. At the sentencing hearing which followed, the state informed the court that Krueger had scored 337 points on his sentencing guidelines score sheet which scored out to 9 to 12 years before probation violation bump-up. The state told the judge that the next cell up placed Krueger in the 12 to 17 year recommended range and 9 to 22 year permitted range and reiterated the earlier recommendation of seventeen years of incarceration.

The trial judge sentenced Krueger to two years of prison to be followed by five years of probation with treatment in a residential program for six months. The two written reasons given by the trial judge for the downward departure sentence ordered were: 1) "Defendant, because of his compulsion or mental illness, has great difficulty conforming his behavior to the requirements of law" and 2) "The defendant requires specialized treatment."

We find the court's reasons for the downward departure are not substantiated by a preponderance of evidence in the record, State v. Traster, 610 So.2d 572 (Fla. 4th DCA 1992), and thus, will not support the departure sentence imposed.

As stated above, the first reason given by the trial court was Krueger's "great difficulty conforming his behavior to the requirements of law." There was no evidence nor was it argued that Krueger did not appreciate the criminal nature of his conduct. Krueger's testimony and that of his family asserting Krueger's "great difficulty conforming ..." is not the same as a demonstrated impairment. There was no evidence medical or otherwise, of Krueger's impaired capacity to conform his conduct to the requirements of law.

This particular reason is very similar to one of the factors which is used in the capital punishment law. See Sec. 921.141(6)(f). Because that statutory mitigating factor is basically the same as the downward departure reason under the sentencing guidelines, case law which has been developed under the capital punishment statute is applicable and supportive of our analysis. See Card v. State, 453 So.2d 17 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984); Mason v. State, 438 So.2d 374 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984); Daugherty v. State, 419...