Stewart v. State, BD-399
| Decision Date | 29 May 1986 |
| Docket Number | No. BD-399,BD-399 |
| Citation | 489 So.2d 176,11 Fla. L. Weekly 1232 |
| Parties | 11 Fla. L. Weekly 1232 Mark Douglass STEWART, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender, Kenneth L. Hosford, Sp. Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Norma J. Mungenast, Asst. Atty. Gen., Tallahassee, for appellee.
Stewart appeals a sentence imposed following his conviction on four counts of aggravated child abuse and one count of child abuse, contending the trial court deviated from the sentencing guidelines for reasons that are not clear and convincing. We disagree and affirm.
Stewart was charged by information with thirteen counts of aggravated child abuse, two counts of child abuse, and one count of lewd and lascivious act upon a child. Pursuant to order by the trial court, five counts were severed from the remaining charges and Stewart proceeded to trial on them alone. Following a trial by jury, Stewart was found guilty of all five crimes.
The trial court then announced its intention to depart from the sentencing guidelines, which recommended a sentence of seven to nine years, and sentenced Stewart to four consecutive fifteen-year sentences for each of the four counts of aggravated child abuse, and one five-year sentence for the count of child abuse, also to run consecutively. The trial judge provided the following reasons as the basis for this departure sentence:
Use of force--The defendant used violent force in totally breaking the bone in the boy's arm. In Counts IV, IX, X and XIII, the defendant used a more cold and calculated form of force in that he clamped hemostats onto the child's tongue, he stuck pins under the child's fingers, he clamped pliers onto the child's penis, and he cut foreskin from the child's penis.
Vulnerability of the victim--The defendant was in a position of mental authority over the victim who was 8 years old. The child lived in the same residence with the defendant and was kept isolated from contact with the outside world. The child had no one who would intercede on his behalf and therefore was totally at the mercy of the defendant.
Physical injuries sustained by the victim--Each injury in each count was of a nature that would result in extreme pain and agony to the victim. The defendant avoided having the broken arm set and treated by competent medical personnel.
Psychological trauma of victim--The child lived in a virtual nightmare in that he was forced to submit to this abuse at any time the defendant so chose and there was no rational cause for this abuse which a child would understand. The abuser stood in the position of parental authority in that he was the victim's stepfather.
Vicious and malevolent intentions of the accused--The unbelievable terror and pain which this victim was subjected to in each count could not be described as anything less than vicious and malevolent.
Lack of remorse of defendant--This defendant has shown absolutely no concern, much less remorse, about any of the injuries to the victim. His only reaction has been to attempt to shift the blame for the injuries to other family members. He has never indicated any regret that the victim sustained these injuries.
In sum, all five of these crimes were especially heinous, atrocious and cruel. There was absolutely no semblance of justification for any of this suffering but rather they were a manifestation of exceptional depravity on the part of the defendant.
The defendant sat in Court and mouthed obscenities at the witness who was his stepson, and also his stepdaughter and his own son. His countenance indicates a total cold indifference to his actions and the resulting suffering of the victim.
Fla.R.Crim.P. 3.701(b)(3) provides in part that the "penalty imposed should be commensurate with the severity of the convicted offense...
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Smith v. State, BF-34
...for departure: Lawson v. State, 498 So.2d 541 (Fla. 1st DCA 1986); Bailey v. State, 492 So.2d 738 (Fla. 1st DCA 1986); Stewart v. State, 489 So.2d 176 (Fla. 1st DCA 1986); Wright v. State, 487 So.2d 1176 (Fla. 1st DCA 1986); Brooks v. State, 487 So.2d 68 (Fla. 1st DCA 1986); rev. den. 494 S......
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Bailey v. State, BE-403
...suffered by the victim could have been cited by the trial court as a valid reason for departure. See, for example, Stewart v. State, 489 So.2d 176 (Fla. 1st DCA 1986); Wright v. State, 487 So.2d 1176 (Fla. 1st DCA 1986); Brooks v. State, 487 So.2d 68 (Fla. 1st DCA 1986); Davis v. State, 489......
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Lawson v. State, BG-258
...from the recommended guidelines sentence. See, for example, Bailey v. State, 492 So.2d 738 (Fla. 1st DCA 1986); Stewart v. State, 489 So.2d 176 (Fla. 1st DCA 1986); Wright v. State, 487 So.2d 1176 (Fla. 1st DCA 1986); Brooks v. State, 487 So.2d 68 (Fla. 1st DCA 1986), 487 So.2d 68 rev. deni......
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Leon v. State
...Steiner v. State, 469 So.2d 179, 181 (Fla. 3d DCA), pet. for review denied, 479 So.2d 118 (Fla.1985). But cf. Stewart v. State, 489 So.2d 176, 178 (Fla. 1st DCA 1986) (where defendant occupies a familial status relative to victim, vulnerability due to age may constitute valid departure basi......