Perez v. State

604 So. 2d 916, 1992 Fla. App. LEXIS 9465, 1992 WL 216195
District Court of Appeal of Florida·Decided September 8, 1992·No. No. 88-1507·Published·Cited by 5 cases

Opinion

PER CURIAM.

Rolando Perez was convicted of armed burglary and robbery, aggravated assault, several counts of false imprisonment and with unlawful possession of a firearm while in the commission of a felony. The trial court departed upward from the sentencing guidelines. In an earlier opinion from this court, Perez v. State, 566 So.2d 881 (Fla. 3d DCA 1990), we vacated two convictions for false imprisonment and the possession of a firearm while in the commission of a felony.

At the time of the original appeal, neither of the parties could locate a written departure order detailing the trial court’s reasons for departure. This court reversed the departure sentence upon the authority of Pope v. State, 561 So.2d 554 (Fla.1990). While the case was pending in the Florida Supreme Court,1 a written order, rendered contemporaneously with Perez’ sentencing, was located and the supreme court relinquished jurisdiction to this court to determine if the reasons for departure were valid. We find that one of the reasons is valid and conclude that the case should be remanded to the trial court under Albritton v. State, 476 So.2d 158 (Fla.1985), to consider whether in light of this determination a departure sentence is warranted.

The departure reasons are as follows:

a. The defendant, Rolando Perez, participated in a brutal home invasion burglary/robbery of the Maria Chinique family which included Mrs. Chinique, her minor daughter, Sandra, infant nephew, Jovanny, and their live-in maid, Elizabeth. The testimony at trial showed that the minor children were home during the course of this robbery. The minor child saw the defendant and his partner in crime armed with handguns within her house, which were pointed at everyone in the house. She saw her mother forced at gunpoint into her bedroom by the robbers. Sandra Berrocal is a ten-year-old girl who, upon seeing these brutal acts committed upon her mother, was forced to sit in the living room at gunpoint and listen to the struggle her mother was going through. While being confined in the living room, she heard a gunshot in the bedroom which had been fired during the course of this robbery by the subjects. Sandra Berrocal was also the victim of an armed false imprisonment. [918]*918This Court cannot imagine the horrible thoughts and fears that had to have gone through the mind of this young victim upon hearing a gunshot, after seeing her mother being forced into the bedroom at gunpoint by the robbers. It is difficult to imagine whether she will ever recover from the psychological and emotional trauma and damage that such a terror-filled moment would bring. The Court finds that the age of the victim, Sandra Berrocal, as well as the trauma of seeing her mother assaulted and robbed within their own home, constitutes a clear and convincing reason to impose a 20 year sentence in this matter and that this clear and convincing reason for departure has been proven beyond and to the exclusion of every reasonable doubt. Casteel v. State, 498 So.2d 1249 (Fla.1986); Fryson v. State, 506 So.2d 1117 (Fla. 1st DCA 1987).
b. The defendant, Rolando Perez, and his partner created an unreasonable risk to others during the course of committing this robbery. The testimony at trial showed that, while the defendant and his partner were committing the robbery, they had a total disregard of the other individuals in the house. At gunpoint, they held at least three other individuals in the residence. They constantly pointed the gun at the maid, Elizabeth, and the daughter, Sandra. Further, there was a small infant in the residence who was also put in danger. The fact that the defendants would discharge a firearm in the residence while being occupied by these individuals created an unreasonable risk of harm to them. The Court finds that the actions of the defendant and his partner of holding the other individuals at gunpoint while discharging a firearm in the residence constitute a clear and convincing reason to impose a 20 year sentence in this matter and this clear and convincing reason for departure has been proven beyond and to the exclusion of every reasonable doubt. Moreira v. State, 500 So.2d 343 (Fla. 3d DCA 1987); Previlon v. State, 500 So.2d 716 (Fla. 4th DCA 1987); Cason v. State, 508 So.2d 448 (Fla. 3d DCA 1987).
c. The defendant, Rolando Perez, and his partner used excessive force to commit this robbery. The testimony at trial showed that Mrs. Chinique was lying across her bed when she was approached by a man with a gun. The man pointed the gun at her and demanded her money and jewelry. Mrs. Chinique got up and tried to leave her bedroom. The man with the gun yelled for his partner. The defendant and his partner stopped Mrs. Chinique in the hallway. They threw her up against the wall and struck her several times. The defendants then dragged her back into her bedroom. They then pushed her to the floor and, while stating that they would kill her, discharged the firearm in the direction of her head. The Court finds that the actions of the defendant and his partner of dragging the victim to the bedroom and then discharging a firearm in the direction of her head constitute a clear and convincing reason to impose a 20 year sentence in this matter and that this clear and convincing reason for departure has been proven beyond and to the exclusion of every reasonable doubt. Hansbrough v. State, 509 So.2d 1081 (Fla.1987); Williams v. State, 500 So.2d 604 (Fla. 5th DCA 1986).

The first reason stated by the trial court was “the age of the victim, Sandra Berrocal, as well as the trauma of seeing her mother assaulted and robbed within their own home.... ” In Sans v. State, 528 So.2d 516 (Fla. 3d DCA 1988), we held that the emotional trauma suffered by the young victims in a home invasion robbery was a valid reason for departure. Id. at 517.

In Casteel v. State, 498 So.2d 1249 (Fla.1986), the court held that a valid reason for departure exists where the victim’s child (in that case a fifteen-year-old son) observes a violent crime against the mother (in that case, sexual battery), so long as the emotional trauma occasioned thereby is not already inherent in the offense charged. Id. at 1253. “The mere fact that the boy witnessed the brutal violation of his mother would constitute a clear and convincing reason for departure.” Id. (citations omit[919]*919ted.) Indeed, departure was authorized in that case even though the defendant was unaware of the child’s presence. Id.

In Davis v. State, 517 So.2d 670 (Fla.1987), a departure sentence was invalidated where the son had been in the next room sleeping when the mother shot the father to death. The departure order was based on the mere presence of the son in the house, but (as recognized by the departure order itself) there was no evidence that the son had awakened or had any awareness of the shooting, much less any emotional trauma. In those circumstances the court held that the Casteel criteria were not satisfied.

In the present case the child actually opened the front door and was confronted by the robbers. The child and the maid were detained at gunpoint in the living room while the mother was forcibly moved to the bedroom. The child could hear the struggle. She heard the gunshot and. for a period of time did not know her mother’s fate. Plainly, this was a traumatic experience of the type envisioned by Casteel,

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Perez v. State, 604 So. 2d 916, 1992 Fla. App. LEXIS 9465, 1992 WL 216195 (Fla. Ct. App. 1992).

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