Double Click above on "Download File" to retrieve this document.
02/14/86 WAYNE TOMPKINS, v. STATE OF FLORIDA,
[Editor's note: footnotes (if any) trail the opinion]
[1] DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
[2] WAYNE TOMPKINS, Appellant,
v.
[3] STATE OF FLORIDA, Appellee
[4] No. 85-266
[5] 483 So. 2d 115, 11 Fla. Law W. 438
[6] February 14, 1986
[7] Appeal from the Circuit Court for Pasco County; W. Lowell Bray, Jr.,
Judge.
BLUE BOOK CITATION FORM: 1986.FL.327 (http://www.versuslaw.com)
[8] APPELLATE PANEL:
[9] Campbell, A.C.J., Lehan, J., concur.
[10] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HALL
[11] Appellant pled guilty to armed robbery, kidnapping, and sexual battery.
The court adjudicated him guilty on all charges and sentenced him to twenty
years on each charge, to run concurrently. The maximum sentence as
designated by the guidelines was nine years. The trial judge based his
departure from the guidelines on the following reasons:
[12] 1. The emotional trauma sustained by the victim; 2. The fact that the
crime was committed in such a way as to extend over a period of time and to
keep the victim in fear and terror for a longer period of time then [sic]
was necessary, during which time she felt not only that her safety and well
being, but in fact her lifewere threatened; 3. That it is the recommendation
or alternate recommendation of Department of Corrections, Parole &
Probation, that the Court exceed the Guidelines.
[13] Appellant argues that the reasons cited by the trial judge were
elements of the crimes which had already been factored into the guidelines
and that a departure based on these elements was error.
[14] Evidence at trial revealed that appellant entered the Pik Kwik
convenience store at approximately 6:00 a.m., as the victim was opening her
shift as attendant. After purchasing a cup of coffee, appellant requested a
dollar for some change. As the attendant was handing appellant the dollar,
he grabbed her firmly by the hand, demanding all of the money in the cash
drawer. Appellant then pulled the victim out of the store and pushed her
into his car. He told her that if she screamed he would kill her. He then
drove her to a secluded area and raped her, while holding a knife to her
throat. Appellant then told the victim to get dressed, gave her money for a
phone call, and released her. The victim did not testify at the sentencing
hearing, but the state alleged that the court should depart from the
guidelines because of the emotional trauma suffered by the victim. As a
result of the experience, the victim was unable to continue in her position
as assistant manager and found it extraordinarily difficult to even visit
the store.
[15] There is no question that the third reason listed by the trial court is
not a valid reason for departure. The alternate recommendation of the
presentence report is not a clear and convincing reason to depart from the
guidelines. Nor is the second reason, as the majority of the factors listed
therein are also elements of the crime of kidnapping, except for the factor
that her life was threatened. The only other reason listed to justify a
departure is the emotional trauma sustained by the victim.
[16] We have held that a victim's psychological trauma is a valid reason to
depart from the recommended guidelines sentence. Ochoa v. State, 476 So.2d
1348 (Fla. 2d DCA 1985). However, that psychological trauma must be
unusually greater than the trauma necessarily contained in the elements of
the criminal charges. Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984).
After a consideration of the record of the sentencing hearing in this case,
we cannot determine that the psychological trauma to the victim rose to this
level. Consequently, psychological trauma to the victim is not a valid basis
for departure in this case. Sentencing guidelines have, in this respect,
produced the functional concept of a 'routine' rape, kidnapping, and armed
robbery, which we find to be a troubling result.
[17] The factor that the victim's life was threatened and the manner in
which the weapon was used may be a clear and convincing reason for
departure, but the trial court has failed to set forth sufficient facts as
to the aspects of appellant's behavior, and we cannot determine beyond a
reasonable doubt that, absent the invalid reasons, the court would have
departed based on this factor.
[18] We therefore find that the departure in this case was based on several
invalid reasons. In such a case, the supreme court has recently held that
"the sentence should be reversed and the case remanded for resentencing
unless the state is able to show beyond a reasonable doubt that the absence
of the invalid reasons would not have affected the departure sentence."
Albritton v. State, 476 So.2d 158, 160 (Fla. 1985); Brinson v. State, 476
So.2d 162 (Fla. 1985). Because we are unable to determine beyond a
reasonable doubt whether the trial court would have departed from the
recommended guidelines sentence absent the invalid reasons, we reverse
appellant's sentence and remand for resentencing.
[19] We find no merit in appellant's contention that his plea was not
knowingly and voluntarily made, and we affirm his conviction.
[20] Reversed and remanded for resentencing.
[21] CAMPBELL, A.C.J., LEHAN, J., Concur.
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
Copyright 1996 VersusLaw, Inc. (206) 250-0142. http://www.versuslaw.com
19860214
1986.FL.327