SIMMIE LEE KENDRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenges his mandatory life sentence without parole for 25 years for sexual battery on a 10-year-old child as cruel and unusual punishment under the Eighth Amendment and Florida Constitution. The court affirms the sentence, finding it proportional to the heinous nature of the offense despite its severity compared to some murder sentences.
The mandatory sentence does not constitute cruel and unusual punishment. The court affirmed the sentence, finding it proportional under the Solem v. Helm test despite its harshness compared to some murder sentences, because the offense is one of the most heinous crimes imaginable and Florida courts have consistently upheld such mandatory minimum sentences against constitutional challenge.
[1] A mandatory sentence of life imprisonment without parole for twenty-five years for sexual battery on a ten-year-old child does not constitute cruel and unusual punishment…
[2] Proportional review under the Eighth Amendment requires consideration of the gravity of the offense, the harshness of the penalty, sentences imposed on other criminals in…
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Join FLexlaw to unlock all legal intelligence“Appellant's argument here that under this analysis the mandatory sentence imposed for appellant's offense would fail the test of constitutionality has substantial appeal, for death is a more severe result than bodily injury, and some murderers in Florida are given a less severe penalty than that imposed upon appellant.”
Court acknowledges the strength of appellant's proportionality argument while ultimately rejecting it
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Join FLexlaw to unlock all legal intelligenceAppellant, a family friend, forced a 10-year-old child into his car late at night, drove her to an isolated dirt road, and sexually assaulted her by d…
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PER CURIAM.
Appellant appeals his mandatory sentence of life imprisonment without possibility of parole for twenty-five years for the commission of sexual battery on a ten-year old child. He alleges that the penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States and Article I, Section 17, of the Constitution of Florida. We disagree and affirm.
At trial, the child testified that appellant, a friend of the family, came to her home late at night and, while her father was asleep on the couch, forced her to go with him in his car. He took her to an isolated dirt road where he ordered her to get into the back seat. He then got into the back seat with her and took his and the child’s clothes off from the waist down. Appellant lay on top of the child, placed his fingers in her vagina, and began moving up and down. She started kicking appellant, but he continued to lie on the child’s stomach until he saw a car approaching, at which time he jumped up and returned to the front seat and started pulling up his pants. In the approaching vehicle, a police car, was a policeman who testified that he observed appellant going from the back seat to the front seat with his buttocks only partially covered. Shortly after the incident, the child was examined by a physician who testified that he found a small laceration near her vagina which was consistent with digital penetration.
Proportional review under the Eighth Amendment, according to the criteria established by the court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), entails consideration of at least the following: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for the same crimes in other jurisdictions. Appellant’s argument here that under this analysis the mandatory sentence imposed for appellant’s offense would fail the test of constitutionality has substantial appeal, for death is a more severe result than bodily injury, and some murderers in Florida are given a less severe penalty than that imposed upon appellant. In addition, it does appear from information found in the appendix to appellant’s brief, that Florida’s statute probably exacts a more severe penalty for sexual battery on a child than any state in the nation, though penalties for offenses of this nature are characteristically severe. Finally, only murderers who receive the death penalty receive a more severe sentence in Florida than did appellant.
Notwithstanding the harshness of the penalty here, we must observe that Florida courts have consistently upheld mandatory minimum sentences against constitutional challenges. See, e.g., (pre-Solem) Scott v. State, 369 So. 2d 330 (Fla.1979); O’Donnell v. State, 326 So. 2d 4 (Fla.1975); McArthur v. State, 351 So. 2d 972 (Fla.1977); State v. Benitez, 395 So. 2d 514 (Fla.1981); and (post-Solem), Morgan v. Brescher, 466 So. 2d 1218 (Fla. 4th DCA 1985); Zarate v. State, 466 So. 2d 1176 (Fla. 3rd DCA 1985).
Further, the Florida Supreme Court has consistently upheld the penalty imposed herein against a constitutional challenge. Banks v. State, 342 So. 2d 469 (Fla.1976); Buford v. State, 403 So. 2d 943 (Fla.1981); Rusaw v. State, 451 So. 2d 469 (Fla.1984); State v. Hogan, 451 So. 2d 844 (Fla.1984). See also Caulder v. State, 500 So. 2d 1362 (Fla. 5th DCA 1986). We note further that the crime dealt with by the court in Solem was one of the most passive and innocuous felonies found in the criminal law, and the penalty was the most severe that could be imposed in the state, while the offense here is one of the most heinous and despicable offenses imaginable, short of actual mayhem, or murder, and we find a high correlation between the gravity of the offense and the harshness of the penalty.
Contrary to appellant’s assertion, we find nothing in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), which would mandate a result here contrary to prior case law in Florida on this issue.
AFFIRMED.
SMITH, C.J., and JOANOS and BARFIELD, JJ., concur.
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Darrick Terrell Adaway v. State, 902 So. 2d 746 (Fla. 2005)…imposed is generally said to be a matter of legislative prerogative.” Hall, 823 So. 2d at 760 (quoting Hale, 630 So. 2d at 526). Although the penalty is harsh, we accept the Legislature’s judgment about the gravity of the crime. See Kendry v. State, 517 So. 2d 78, 79 (Fla. 1st DCA 1987) (stating that sexual battery upon a child is “one of the most heinous and despicable offenses imaginable”). As one court has remarked: Child sexual predation is a serious concern. Even when it leaves no physical scars, it ca…
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Gibson v. State, 721 So. 2d 363 (Fla. 2d DCA 1998)…constitutional penalty for capital sexual battery, as defined in section 794.011(l)(h). The Florida Supreme Court so held in 1976. See Banks v. State, 342 So. 2d 469 (Fla.1976); see also Harrison v. State, 360 So. 2d 421 (Fla.1978); Kendry v. State, 517 So. 2d 78 (Fla. 1st DCA 1987). Mr. Gibson argues that Banks and its progeny are no longer controlling because the legislature eliminated the possibility of [*368] parole for capital sexual battery convictions in 1995. See ch. 95-295, Laws of Fla.3 Effective…
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Phillips v. State, 807 So. 2d 713 (Fla. 2d DCA 2002)…Fla. 1st DCA 1990) ("[T]his court has previously held that the imposition of a life sentence without possibility of parole does not constitute cruel and unusual punishment. Bloodworth v. State, 504 So. 2d 495 (Fla. 1st DCA 1987).”); Kendry v. State, 517 So. 2d 78 (Fla. 1st DCA 1987) (holding that a sentence of life without possibility of parole for twenty-five years for sexual battery on a ten-year-old child did not constitute cruel and unusual punishment as prohibited by the Eighth Amendment and the Florida…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Solem v. Helm, 463 U.S. 277 (U.S. 1983)
- Nadean O. McARTHUR v. State, 351 So. 2d 972 (Fla. 1977)
- State v. Benitez, 395 So. 2d 514 (Fla. 1981)
- Buford v. State, 403 So. 2d 943 (Fla. 1981)
- State v. Hogan, 451 So. 2d 844 (Fla. 1984)
- Rusaw v. State, 451 So. 2d 469 (Fla. 1984)
- Howard Banks v. State, 342 So. 2d 469 (Fla. 1976)
- O'Donnell v. State, 326 So. 2d 4 (Fla. 1975)
- Caulder v. State, 500 So. 2d 1362 (Fla. 5th DCA 1986)
- Scott v. State, 369 So. 2d 330 (Fla. 1979)