Davis v. State

499 So. 2d 898, 12 Fla. L. Weekly 143, 1986 Fla. App. LEXIS 11018

Opinion

PER CURIAM.

The trial judge gave two reasons for his departure from the sentencing guidelines recommendation. The first reason was that “the Defendant displayed violent propensities during the commission ...” of this crime. The second reason was that “... the victim and her children suffered psychological and emotional trauma which was caused by the Defendant’s actions. This reason is sufficient, by itself, to exceed the sentencing guidelines”.

We find the first reason questionable and inconsistent with the jury’s finding that the Defendant was guilty of crimes less violent than those with which he was originally charged. However, the second reason alone, based on emotional trauma, may support a departure sentence where the defendant is convicted of burglary. Hankey v. State, 485 So.2d 827 (Fla.1986). We find that the second reason for departure is clear and convincing and that the trial judge made it plain beyond a reasonable doubt that the absence of the first reason would not affect his departure sentence. Therefore we affirm. See Albritton v. State, 476 So.2d 158 (Fla.1985).

AFFIRMED.

JOANOS, THOMPSON and NIMMONS, JJ., concur.