THE STATE OF FLORIDA, APPELLANT,
v.
MIKEAL KASTEN, APPELLEE
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Florida appealed a downward departure sentence imposed on a defendant who pleaded guilty to sexual battery and lewd acts against his own daughter. The trial judge imposed a suspended sentence based on the victim's courtroom plea that her father not be imprisoned, reasoning the defendant could pay for the victim's therapy if not incarcerated. The court vacated the sentence, holding that while victim input is relevant, the judge improperly made it determinative and lacked sufficient record evidence to support a restitution-based departure.
The sentence was improper and must be vacated. While victim input is relevant to sentencing, it cannot be determinative—the judge, not the victim, must weigh society's competing needs. Additionally, a need for restitution can support downward departure, but the decision must be supported by record evidence. Here, there was no record testimony regarding the cost of future counseling, and the victim was already receiving free counseling at school, so no restitution need was established.
[1] A victim's wishes are relevant but not determinative in sentencing, and the judge must weigh society's competing needs.
[2] A downward departure sentence requires a two-part analysis: first, determining if a valid legal ground and factual support exist, and second, deciding if departure is the…
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Join FLexlaw to unlock all legal intelligence“While a victim's wishes are "relevant" they are not to be determinative and "it is the judge, not the victim, who must weigh society's competing needs."”
Establishes the legal principle that victim input, while relevant, cannot control sentencing decisions.
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Join FLexlaw to unlock all legal intelligenceMikeal Kasten pleaded guilty to two counts of sexual battery, two counts of lewd and lascivious acts on a child under age sixteen, and solicitation of…
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NESBITT, Senior Judge.
Defendant Mikeal Hasten pled guilty to two counts of sexual battery, two counts of lewd and lascivious acts on a child under the age of sixteen, and solicitation of a sex act by a person of familial authority. The victim was Kasten’s daughter. Hasten sought a downward departure of his sentence, in support of which, the victim came into court and pleaded to the trial judge that he not send her father to prison. The judge stated that but for the victim’s plea he would not consider mitigation.
However he also stated that he was so moved by her heartfelt request and her statement that she could not heal if her father was in prison, that he was ordering a mitigated sentence in light of the victim’s need for therapy, which Kasten could pay for, if he were not incarcerated. The state appeals the suspended sentence and extended probation thereafter ordered. We vacate the sentence ordered and remand for re-sentencing.
The imposition of a downward departure sentence is a two-part process. First, the trial court must determine “whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground.” Banks v. State, 732 So. 2d 1065, 1067 (Fla.1999). Second, the trial court must decide “whether it should depart, i.e,, whether departure is indeed the best sentencing option for the defendant.” Id. at 1068. While a victim’s wishes are “relevant” they are not to be determinative and “it is the judge, not the victim, who must weigh society’s competing needs.” Id. at 1069. See State v. McLaren, 763 So. 2d 1171 (Fla. 4th DCA 2000).
A need for restitution is a valid basis for a downward departure. See § 921.0016 Fla. Stat. (1999); see also Banks, 732 So. 2d at 1068-69 (concluding that in weighing the need for restitution versus the need for imprisonment a court must take into consideration all the relevant factors, including on the one hand both the nature of the victim’s loss and the efficacy of restitution, and on the other hand the consequences of imprisonment).
However the decision to mitigate must be supported by record evidence. Here, as the state maintains, there was no record testimony as to the cost of future counseling and at the time of hearing, the victim was receiving counseling at her school at no cost to her.
Thus, there was no record support for the need for restitution, and this was the only reason given for the downward departure sentence ordered.
Accordingly, the sentence at issue is vacated and the cause remanded for re-sentencing within the guidelines,
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State v. Laffayette Berry, 976 So. 2d 645 (Fla. 3d DCA 2008)…on for downward departure. That issue can be raised in the trial court on remand. As to the suggestion that a victim’s consent can, in and of itself, constitute a valid downward departure reason, the parties’ attention is invited to State v. Kasten, 775 So. 2d 992 (Fla. 3d DCA 2000). [*646] Reversed and remanded for further proceedings consistent herewith.…
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State v. Elvis Pita, 54 So. 3d 557 (Fla. 3d DCA 2011)…245 (Fla.2003); Walters, 12 So. 3d at 303 (finding departure sentence invalid where no pressing need for restitution was shown where insurance company, as part of its normal business expectations, had already reimbursed the victim); State v. Kasten, 775 So. 2d 992, 998 (Fla. 3d DCA 2000). In the instant cases, there was absolutely no record evidence regarding any of the victims’ overriding need for restitution. In case number F06-34368 the trial court ordered no restitution. In case number F06-8371 the recor…
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State v. Martinez, 103 So. 3d 1013 (Fla. 3d DCA 2012)…he did not wish him kept from his family for a lengthy period. But see Campbell v. State, 48 So. 3d 201 (Fla. 2d DCA 2010); State v. Geoghagan, 27 So. 3d 111 (Fla. 1st DCA 2009); Wynkoop v. State, 14 So. 3d 1166 (Fla. 4th DCA 2009); State v. Kasten, 775 So. 2d 992 (Fla. 3d DCA 2000). . Because the violation of probation is factored into the guideline computation, the bottom of the guidelines now provides for two and one-half years in prison. See § 921.0024(l)(b)2.a„ Fla. Stat. (2009). . The Senate Staff Ana…
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
- Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)
- State v. McLAREN, 763 So. 2d 1171 (Fla. 4th DCA 2000)