Haye v. State

615 So. 2d 762, 1993 WL 55931
CourtDistrict Court of Appeal of Florida
DecidedMarch 5, 1993
Docket92-1019
StatusPublished
Cited by6 cases

This text of 615 So. 2d 762 (Haye v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haye v. State, 615 So. 2d 762, 1993 WL 55931 (Fla. Ct. App. 1993).

Opinion

615 So.2d 762 (1993)

Howard HAYE, Appellant,
v.
STATE of Florida, Appellee.

No. 92-1019.

District Court of Appeal of Florida, Fifth District.

March 5, 1993.

*763 James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.

DIAMANTIS, Judge.

Appellant Howard Haye appeals the trial court's imposition of a departure sentence and five consecutive three-year mandatory minimum sentences. We affirm appellant's convictions and the departure sentence; however, we reverse in part the imposition of the consecutive mandatory minimum sentences.

In June of 1990 appellant, with the help of his brother, assaulted two female tourists (D and R) in an Orlando motel. Specifically, the brothers forced the women into their hotel room as they were unlocking the door, robbed the women of their jewelry and then appellant sexually battered one of the victims (R). The brothers then fled in the victims' rental car. Appellant brandished a firearm at the time he committed these offenses.

The jury found appellant guilty of two counts of sexual battery with a firearm,[1] two counts of robbery with a firearm,[2] one count of burglary of a dwelling with a *764 battery,[3] and one count of grand theft of an automobile.[4] The trial court entered judgment on the jury's verdict and then departed from the guidelines and sentenced appellant to:

(1) 40 years imprisonment with a three-year mandatory minimum[5] on count 1 (sexual battery of R),

(2) 40 years imprisonment with a three-year mandatory minimum on count 2 (sexual battery of R),

(3) 40 years imprisonment with a three-year mandatory minimum on count 3 (armed robbery of R),

(4) 40 years imprisonment with a three-year mandatory minimum on count 4 (armed robbery of D),

(5) 40 years imprisonment with a three-year mandatory minimum on count 5 (burglary with a battery),[6] and

(6) 5 years imprisonment on count 7 (grand theft auto). The trial court ordered that all the sentences are to run consecutive to each other.

The sentence imposed exceeds both the recommended guidelines sentence and the permitted sentencing range. Recognizing that the sentence constitutes a departure, the trial court provided written reasons to justify departure. Specifically, the trial court stated that departure was justified because (1) the victim of the sexual battery suffered extreme emotional trauma as a result of the crime, and (2) appellant committed two additional armed robberies a week after he committed the instant offenses.

Appellant first contends that the trial court's reasons for departure are not sufficient. We reject this contention.

As noted above, the trial court departed from the recommended sentencing guidelines by sentencing appellant on the two sexual battery counts to 40 years imprisonment. The trial court based its decision to depart on the fact that the victim 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.2d 477 (Fla. 1st DCA 1988).

Here, the trial court concluded that R suffers from emotional trauma so substantial that it results in discernible physical manifestations. In its written order justifying departure the trial court stated:

[T]he victim of the sexual batteries, [R], has suffered extreme psychological or mental trauma that is clearly beyond that is normally associated with the crime of sexual battery. [R] as a result of this crime has had to have regular psychological counseling; she has suffered recurring nightmares and had difficulty in sleeping; and she has displayed a fear of being around strangers and leaving her home environment... . [T]hat [R]'s psychotherapist, Carl R. Maurer, in a letter addressed to the court dated March 8, 1992 stated he was helping her manage symptoms associated with her post-traumatic stress disorder. He stated that this post-traumatic stress disorder symptomology was related to the sexual assault. Mr. Maurer also stated the following concerning [R]: "She experienced recurrent and intrusive recollections of this event along with recurrent *765 distressing dreams and on occasion had disassociative states of brief duration. In addition [R] had persistent avoidance of stimuli events (e.g., other men) associated with this incident. This blended with other diminished responsiveness to her external world (psychic numbing). Persistent symptoms of increased arousal manifested themselves especially in difficulty falling and staying asleep, hypervigilance, as well as exaggerated startle response. She experienced difficulty in concentration (i.e., work) and in completing tasks. She had underlying irritability with fears of losing control. [R] experienced dissociative symptoms of depression of mood and anxiety with anhedonia, change in life-style, emotional liability on occasion and psychological symptoms which proved to be transient." That [R]'s physician, George M. Rapier, M.D. stated the following in a letter dated February 27, 1992: "[R] was first treated by myself in September of 1985. I have been her physician since that time. I have been treating her since the episode of her rape while in Florida. Since that time she has had significant emotional disturbance with an anxiety and depressive disorder. For this disorder she required treatment with anti-depressant and anti-anxiety medications. She was also required referral to a psychologist for psychotherapy and has continued this on an ongoing basis."[7]

Because the record contains evidence to support the trial court's ruling, the departure sentence on the sexual battery counts is affirmed.

Appellant further maintains that, although the trial court properly concluded that his commission of two armed robberies a week after committing the instant crimes constitutes a valid basis for departure,[8] such departure can be no greater than that which appellant could have received if the subsequent robberies had been scored on his guidelines scoresheet. To support this claim appellant cites to Puffinberger v. State, 581 So.2d 897 (Fla. 1991).

In Puffinberger, appellant pled nolo contendere to aggravated child abuse. Appellant's guidelines scoresheet reflected three second-degree felony convictions for burglaries committed when he was a juvenile. When sentencing appellant for the child abuse charge, the trial court ruled that the three juvenile dispositions were unscorable because they occurred more than three years prior to the instant offense. The trial court, however, exceeded the guidelines based on the unscored burglaries. On appeal appellant argued that his juvenile record was not serious enough to warrant departure.

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Related

Haye v. State
713 So. 2d 1061 (District Court of Appeal of Florida, 1998)
Harris v. State
685 So. 2d 1282 (Supreme Court of Florida, 1996)
Harris v. State
659 So. 2d 1360 (District Court of Appeal of Florida, 1995)
Nesbitt v. State
650 So. 2d 711 (District Court of Appeal of Florida, 1995)
Bedoya v. State
634 So. 2d 203 (District Court of Appeal of Florida, 1994)
Wray v. State
632 So. 2d 682 (District Court of Appeal of Florida, 1994)

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615 So. 2d 762, 1993 WL 55931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haye-v-state-fladistctapp-1993.