Tompkins v. State, 85-266
| Decision Date | 14 February 1986 |
| Docket Number | No. 85-266,85-266 |
| Parties | 11 Fla. L. Weekly 438 Wayne TOMPKINS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Joseph Eugene Perrin, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
Appellant pled guilty to armed robbery, kidnapping, and sexual battery. The court adjudicated him guilty on all charges and sentenced him to twenty years on each charge, to run concurrently. The maximum sentence as designated by the guidelines was nine years. The trial judge based his departure from the guidelines on the following reasons:
1. The emotional trauma sustained by the victim; 2. The fact that the crime was committed in such a way as to extend over a period of time and to keep the victim in fear and terror for a longer period of time then [sic] was necessary, during which time she felt not only that her safety and well being, but in fact her life[,] were threatened; 3. That it is the recommendation or alternate recommendation of Department of Corrections, Parole & Probation, that the Court exceed the Guidelines.
Appellant argues that the reasons cited by the trial judge were elements of the crimes which had already been factored into the guidelines and that a departure based on these elements was error.
Evidence at trial revealed that appellant entered the Pik Kwik convenience store at approximately 6:00 a.m., as the victim was opening her shift as attendant. After purchasing a cup of coffee, appellant requested a dollar for some change. As the attendant was handing appellant the dollar, he grabbed her firmly by the hand, demanding all of the money in the cash drawer. Appellant then pulled the victim out of the store and pushed her into his car. He told her that if she screamed he would kill her. He then drove her to a secluded area and raped her, while holding a knife to her throat. Appellant then told the victim to get dressed, gave her money for a phone call, and released her. The victim did not testify at the sentencing hearing, but the state alleged that the court should depart from the guidelines because of the emotional trauma suffered by the victim. As a result of the experience, the victim was unable to continue in her position as assistant manager and found it extraordinarily difficult to even visit the store.
There is no question that the third reason listed by the trial court is not a valid reason for departure. The alternate recommendation of the presentence report is not a clear and convincing reason to depart from the guidelines. Nor is the second reason, as the majority of the factors listed therein are also elements of the crime of kidnapping, except for the factor that her life was threatened. The only other reason listed to justify a...
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Kelly v. State, 87-2004
...by direct testimony of the victim. See Harris v. State, No. 85-7205 (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); a......
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J.M. v. State
...D'Alexander, 496 So.2d 1007, 1009 (Fla. 2d DCA 1986); Montgomery v. State, 489 So.2d 1225, 1226 (Fla. 5th DCA 1986); Tompkins v. State, 483 So.2d 115, 116 (Fla. 2d DCA 1986).The sentencing decision is ultimately that of the court, not the probation officer, and cannot properly be delegated ......
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Lumpkin v. State, 86-3058
...from the psychological trauma." Rousseau, 509 So.2d at 284 (Fla.1987); see State v. Cote, 487 So.2d 1039 (Fla.1986); Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA 1986). Cf. Casteel v. State, 498 So.2d 1249 (Fla.1986) (emotional trauma valid ground for departure where woman sexually assault......
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