MARK FRANKLIN BARRENTINE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that emotional trauma of a victim cannot constitute a clear and convincing reason for a departure sentence in lewd and lascivious conduct cases, applying the same principle it had established for sexual battery convictions. The Court disapproved the First District's distinction between these offenses and remanded for resentencing.
Emotional trauma cannot constitute a clear and convincing reason for a departure sentence in lewd and lascivious conduct cases under section 800.04, Florida Statutes, just as it cannot in sexual battery cases. The rule established in Lerma v. State applies equally to both the more serious offense of sexual battery and the less serious crime of lewd and lascivious conduct.
[1] Emotional hardship inflicted upon a victim can never constitute a clear and convincing reason to depart from sentencing guidelines in a sexual battery case, as such hards…
[2] The rule that emotional hardship cannot serve as a basis for sentencing departure in sexual battery cases also applies to the lesser crime of lewd and lascivious conduct.
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Join FLexlaw to unlock all legal intelligence“emotional hardship can never constitute a clear and convincing reason to depart in a sexual battery case because nearly all sexual battery cases inflict emotional hardship on the victim”
Establishes the Lerma principle that emotional trauma is inherent in sexual offenses and therefore cannot justify departure sentencing
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Join FLexlaw to unlock all legal intelligenceMark Franklin Barrentine was convicted of lewd and lascivious assault upon a child. The trial court imposed a departure sentence based on the child's …
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OVERTON, Justice.
This is a petition to review the First District Court of Appeal’s decision in Bar- rentine v. State, 504 So. 2d 533 (Fla. 1st DCA 1987), in which that court approved a departure sentence for petitioner’s conviction of lewd and lascivious assault upon a child, based upon the child’s psychological trauma.
We find conflict with our decision in Lerma v. State, 497 So. 2d 736 (Fla.1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. In its decision, the district court recognized our Lerma decision in which we held that “emotional hardship can never constitute a clear and convincing reason to depart in a sexual battery case because nearly all sexual battery cases inflict emotional hardship on the victim.” 504 So. 2d at 534, quoting Lerma, 497 So. 2d at 739.
The district court of appeal attempted to distinguish the crime of sexual battery prosecuted under section 794.011(l)(h), Florida Statutes (1985), and the lesser crime of lewd and lascivious conduct as proscribed by section 800.04, Florida Statutes (1985), citing its recent decision in Kokx v. State, 498 So. 2d 534 (Fla. 1st DCA 1986).
We note the Second District Court of Appeal has taken a contrary view in Connell v. State, 502 So. 2d 1272 (Fla. 2d DCA 1987), and applied the Lerma view to a conviction under section 800.04, Florida Statutes. The issue is emotional trauma — not physical trauma.
We conclude that if the principles we have adopted for sentencing departure are to be applied in a logical and consistent manner, the Lerma rule, if applicable to the more serious offense of sexual battery under 794.011, should also be applicable to the less serious crime of lewd and lascivious conduct under section 800.04, Florida Statutes.*
Accordingly, we disapprove the First District Court’s decisions in the instant case and Kokx v. State, and approve the decision of the Second District Court of Appeal in Connell. We remand the instant case with directions to remand to the trial court for resentencing in accordance with the views expressed in this opinion.
It is so ordered.
MCDONALD, C.J., and EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. *
In reaching our decision in this case, we have not modified or overlooked State v. Rousseau, 509 So. 2d 281 (Fla.1987), and its holding that there might be some circumstances in which the emotional trauma of the victim is clearly not inherent in the crime charged or is so substantial that it results in a discernible physical manifestation and consequently may be an appropriate basis for departure.
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Johnson v. State, 543 So. 2d 1289 (Fla. 4th DCA 1989)…culation of his guidelines scoresheet. One recent example of a court’s separate assessment of points for victim injury in an offense which involved victim injury is Barrentine v. State, 504 So. 2d 533 (Fla. 1st DCA 1987), reversed on other grounds, 521 So. 2d 1093 (Fla.1988). In Barrentine, the first district affirmed a sentence which charged a defendant on his guidelines scoresheet with twenty points for victim injury, where the evidence showed that a defendant convicted of lewd and lascivious assault on a c…1 / 2
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Haye v. State, 615 So. 2d 762 (Fla. 5th DCA 1993)…of the sexual battery (R) experienced extreme emotional trauma as a result of the crime. Emotional trauma is a valid reason for departure when the trauma is so substantial that it results in a discernible physical manifestation. Barrentine v. State, 521 So. 2d 1093, 1094, n. 1 (Fla.1988); State v. Rousseau, 509 So. 2d 281, 284 (Fla.1987). See also Wilson v. State, 567 So. 2d 425 (Fla.1990); Harris v. State, 531 So. 2d 1349 (Fla.1988); Smith v. State, 526 So. 2d 1060 (Fla. 1st DCA 1988); Smith v. State, 525 So.…
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Wilson v. State, 548 So. 2d 874 (Fla. 1st DCA 1989)…assaults; however, there may be some circumstances in which the emotional trauma suffered by the victim is clearly not inherent in the offense charged or is so substantial that it results in a discernible physical manifestation. Barrentine v. State, 521 So. 2d 1093, 1094 (Fla.1988). Although the victim in the instant case was very severely traumatized, we believe this case is more properly aligned with those applying the general rule, rather than the exception thereto, that emotional trauma is not a valid reas…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)
- Kokx v. State, 498 So. 2d 534 (Fla. 1st DCA 1986)
- Barrentine v. State, 504 So. 2d 533 (Fla. 1st DCA 1987)
- Connell v. State, 502 So. 2d 1272 (Fla. 2d DCA 1987)