Lettman v. StateLettman v. State
Appellant was convicted of the third-degree murder of his daughter, Taneshia, a three-year-old child. We affirm the conviction, finding no merit in the arguments advanced for reversal.
The trial court departed from the sentencing guidelines (which established a range of three to seven years’ incarceration) and imposed a sentence of fifteen years, stating three grounds for departure. The first reason given was that appellant had abused a position of trust.
The Supreme Court of Florida addressed departure from the sentencing guidelines based on an abuse of trust of a family relationship in Davis v. State, 517 So.2d 670 (Fla. 1987), where a wife shot and killed her husband. The supreme court found that while abuse of trust of a family relationship
Most recently, in Hall v. State, 517 So.2d 692 (Fla. 1988), the supreme court reviewed a departure based, inter alia, on “a special position of trust within the family unit.” In Hall the parents beat their two children with a belt for the purpose of toilet training, starting at age one, each time the children urinated without telling their parents. The beatings occurred two to six times a day over a period of approximately five years. The supreme court held that use of familial authority was an invalid reason for departure, stating:
There are, of course, some cases of child abuse which occur outside the family unit. However, since the use of familial authority exists in so many child abuse cases, its adverse effect may have been taken into consideration in the setting of the guideline ranges for that offense. In any event, to permit a built-in basis for departure in so many child abuse cases would be contrary to the purpose and spirit of the sentencing guidelines.
Id. at 695. See also Eldridge v. State, 13 F.L.W. 1042 (Fla. 5th DCA Apr. 28, 1988). Departure based on abuse of familial trust is permissible, but as the supreme court has suggested, only under the most barbaric and grotesque circumstances. While the facts in the present case are shocking, they do not fit within the ambit of the cited cases.
The trial court‘s second reason for departure was the vulnerability and tender age of the victim. This reason is invalid. Neither advanced age alone nor helplessness or vulnerability are sufficient as clear and convincing reasons for an upward departure from the guidelines. Byrd v. State, 516 So.2d 107 (Fla. 4th DCA 1987).
The trial court‘s third reason for departure was the pattern of abuse perpetrated on the victim. While an escalating pattern of criminal activity is a valid reason for departure from the guidelines when clearly supported by the facts, Booker v. State, 514 So.2d 1079 (Fla. 1987), a pattern of abuse or “punishment” as in this case does not support departure.
Accordingly, we affirm the conviction but reverse the sentence and remand for resentencing within the guidelines.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
DELL and WALDEN, JJ., concur.