Hipp v. StateHipp v. State
Appellant was convicted of sexual battery, aggravated battery, battery on a police officer, and kidnapping, for which he suffered sentences of two terms of life in prison, thirty years in prison and ten years in prison, all to run consecutively. From the judgment of conviction and sentence he has perfected this appeal presenting four appellate points.
The criminal episodes involved commenced when Lisa Barlow, a mortgage processor for Atlantic Equity, was exiting the outer door of the ladies’ room on the ninth floor of the Concourse Building in West Palm Beach. Appellant pushed his way in, shut the door, ordered Lisa back inside the ladies’ room, grabbed her arms and pulled her inside a handicapped person‘s stall.
Appellant pulled the victim back against the stall handrail, closed and locked the door behind him, stood in front of Lisa Barlow, and ordered her to remove her dress. Appellant then hit Lisa Barlow in the head, tore her dress and underwear off, and put his fingers in her vagina. Prior to committing the sexual battery of Lisa Barlow, appellant violently punched her on the left side of her face several times with such force that the right side of her face was smacked into the wall of the stall. These blows ultimately resulted in the complete closing of her left eye, the need for permanent surgical replacement of her left eye socket, and the beating of her face to a point where it was unrecognizable.
The next thing Lisa Barlow remembered was lying face down outside in the hallway and screaming for help. Appellant was pulling her legs and (surprisingly) yelling for police assistance. Ms. Cutshaw, a coworker, had heard screaming from the bathroom and came to Lisa Barlow‘s aid. Other workers in the building corroborated hearing screams, saw appellant in the hallway with Lisa, and then saw appellant escaping down the elevator.
Appellant was apprehended nearby and returned to the scene of the crime. While in the police cruiser, appellant became violent, kicked out one of the car windows, and while being removed from the car he kicked Officer Rodgers in her chest.
At trial, appellant contended he had been drinking all day and the night before, was intoxicated and did not remember the events surrounding the crime. The jury verdict found him guilty as charged and, at sentencing, the state adduced evidence of appellant‘s prior felony conviction for a similar offense of sexual battery for which he had been paroled just six months prior
Several of the points can be disposed of rather summarily. In the first of those, appellant contends that the court erred in not granting a judgment of acquittal on the kidnapping count. He contends that the movement or confinement of the rape victim was inconsequential and merely incidental to the sexual assault and, thus, inherent in the nature of that crime. We reject that argument because, although a valid legal argument, it is inapposite here for the reason that the evidence shows that much more was done to the victim by way of asportation and confining than was necessary to effectuate the sexual assault. Faison v. State, 426 So.2d 963 (Fla. 1983).
Secondly, appellant suggests that the court erred in failing to give him proper credit for time served prior to conviction. This, too, we reject. Appellant was not entitled to credit on each of the consecutive sentences but, rather, only to credit for time served against the original sentence. Keene v. State, 500 So.2d 592 (Fla. 2d DCA 1986); Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974). As required, the trial court gave appellant proper credit against the original sentence.
Appellant presents a more difficult point regarding conviction of both sexual battery and a lesser included offense thereof, aggravated battery.
The information upon which appellant went to trial charged appellant with 1) sexual battery and in the process using actual physical force likely to cause serious personal injury, pursuant to
In determining whether separate convictions may flow from a single event one looks at the statutory elements of the charged crimes, as opposed to the language of the charging document. If each crime, under the respective statutes, requires an element of proof that the other does not, then one is not an included offense of the other. They are separate offenses.
Id. at 420. See also Rotenberry v. State, 468 So.2d 971 (Fla. 1985). In view of the foregoing, we hold that the conviction and sentences for both sexual battery and aggravated battery were proper.
Finally, appellant contends the trial court erred in sentencing him to two life terms, thirty years, and ten years consecutively when the recommended guidelines sentence calls for life imprisonment. The stated reasons for departure were psychological trauma to the victim, the medical prediction that appellant would commit similar crimes again if he drinks alcohol, and
Habitual offender status has recently been condemned as a basis for departure by the supreme court in Whitehead v. State, 498 So.2d 863 (Fla. 1986). Furthermore, the possibility of the prisoner committing future crimes has been held an invalid ground for departure. McBride v. State, 477 So.2d 1091 (Fla. 4th DCA 1985); Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984).
Finally, the psychological trauma to the victim associated with a sexual battery has been held generally not to be a valid reason for departure because “nearly all sexual battery cases inflict emotional hardship on the victim.” Lerma v. State, 497 So.2d 736, 739 (Fla. 1986). Nevertheless, the supreme court approved psychological trauma as a ground for departure in a sexual battery case in Casteel v. State, 498 So.2d 1249 (Fla. 1986), because the emotional trauma there (rape of mother observed by her teen-age son) involved a component not inherent in the crime of sexual battery. The psychological impact of this uncommon turn of events was felt to be so unusual on both or either mother and child that it took the case out of the ordinary and justified a departure. The court noted the provision of
Although not raised as a point on appeal, we observe that the trial judge set forth his written grounds for departure in cryptic, notation form on the guidelines sentencing scoresheet under the section
For the first time in this state, a body of law is being developed regarding considerations which may or may not be appropriate in sentencing criminal defendants. This effort would best be served by requiring the thoughtful effort which “a written statement providing clear and convincing reasons” would produce. This, in turn, should provide a more precise, thoughtful, and meaningful review which ultimately will result in the development of better law.
Accordingly, we affirm the judgment of conviction but, in view of the fact that two of the three grounds specified for departure are invalid, following Albritton we remand the cause for reconsideration of the sentence.
GLICKSTEIN and WALDEN, JJ., concur.
Notes
Appellee‘s brief describes the psychological impact of this rape upon the victim as follows:
At the sentencing hearing, Barlow testified that the rape had caused her to completely reorganize her life and goals, from a marriage to her then-fiance and children, and a continuing association with the mortgage company, to the absence of a relationship, the loss of her job and money at the time, and the loss of her self-esteem. Furthermore, the facts of the crime reflect the commission of an extremely violent sexual battery; the victim‘s attempts to escape from Appellant, while being beaten and violently attacked by Appellant, in the presence of her colleagues at the mortgage company; and the mobilization by her office colleagues, to various vantage points in the building and on the balcony, to locate the victim‘s assailant, while she lay in a colleague‘s arms, beaten and bleeding.
(Record references omitted.)