Turner v. State

District Court of Appeal of Florida

Turner v. State

510 So. 2d 920, 12 Fla. L. Weekly 809, 1987 Fla. App. LEXIS 7321

CourtDistrict Court of Appeal of Florida

DecidedMarch 20, 1987

DocketNo. BJ-265

StatusPublished

Cited by1 cases

This text of 510 So. 2d 920 (Turner 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

Turner v. State, 510 So. 2d 920, 12 Fla. L. Weekly 809, 1987 Fla. App. LEXIS 7321 (Fla. Ct. App. 1987).

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Opinion

WIGGINTON, Judge.

Appellant seeks review of his departure sentence upon his conviction, after entry of [921]*921a guilty plea, of the second degree felony of committing a lewd and lascivious act upon a child, his fifteen year old daughter, in violation of section 800.04, Florida Statutes. We affirm.

The guidelines scoresheet resulted in a recommended sentence of community control or twelve to thirty months’ incarceration. However, the trial judge departed from that recommendation and sentenced appellant to four and one-half years in prison, based upon three written reasons, two of which we have determined were not clear and convincing. However, the third reason — the fact that the defendant took advantage of his position of familial authority and trust over the victim, his daughter — is a valid reason for departure. Jefferson v. State, 489 So.2d 860 (Fla. 1st DCA 1986); Stewart v. State, 489 So.2d 176 (Fla. 1st DCA 1986); Williams v. State, 462 So.2d 36 (Fla. 1st DCA 1984). Under the circumstances of this case and considering the overpowering nature of the valid reason for departure, we are convinced that the trial judge would have imposed the same departure sentence based only upon that appropriate reason. Therefore, we affirm.

WENTWORTH and NIMMONS, JJ., concur.

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WIGGINTON, Judge.

Appellant seeks review of his departure sentence upon his conviction, after entry of [921]*921a guilty plea, of the second degree felony of committing a lewd and lascivious act upon a child, his fifteen year old daughter, in violation of section 800.04, Florida Statutes. We affirm.

The guidelines scoresheet resulted in a recommended sentence of community control or twelve to thirty months’ incarceration. However, the trial judge departed from that recommendation and sentenced appellant to four and one-half years in prison, based upon three written reasons, two of which we have determined were not clear and convincing. However, the third reason — the fact that the defendant took advantage of his position of familial authority and trust over the victim, his daughter — is a valid reason for departure. Jefferson v. State, 489 So.2d 860 (Fla. 1st DCA 1986); Stewart v. State, 489 So.2d 176 (Fla. 1st DCA 1986); Williams v. State, 462 So.2d 36 (Fla. 1st DCA 1984). Under the circumstances of this case and considering the overpowering nature of the valid reason for departure, we are convinced that the trial judge would have imposed the same departure sentence based only upon that appropriate reason. Therefore, we affirm.

WENTWORTH and NIMMONS, JJ., concur.

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Bluebook (online)

510 So. 2d 920, 12 Fla. L. Weekly 809, 1987 Fla. App. LEXIS 7321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-state-fladistctapp-1987.

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