Casteel v. State, 481 So. 2d 72 (Fla. Dist. Ct. App., First District 1986)

PER CURIAM.

This cause is before us on appeal from a judgment, pursuant to a jury verdict, adjudicating defendant guilty of sexual battery with use of a deadly weapon and burglary of a dwelling while armed with a dangerous weapon, and a sentence of 30 years, a departure from the guidelines range. On appeal, defendant challenges, inter alia, the trial court’s departure from the guidelines range.

Based on the evidence presented, the trial court departed from the 17-to-22-year recommended guidelines range, giving the following written reasons:

fenses for which he was sentenced. At the trial he testified that he was intoxicated and did not remember what happened. Such testimony is contrary to that of the victim and the testimony of the police officers with respect to Defendant’s statements at the scene of the crime.

The first reason for departure, defendant’s use of a knife, is a valid reason for departure. While use of the knife is an element inherent in the charge of sexual battery with use of a deadly weapon,1 a first-degree burglary2 requires only that the defendant be armed with a dangerous weapon. Therefore, the actual use of the knife is not a factor considered in the establishment of the guidelines range for first-degree burglary and is a valid reason for departure.

The second reason recognizes the calculated manner in which the crime was committed. Because sexual battery with use of a deadly weapon is not a specific intent crime, the calculated manner in which it was committed is not a necessary element and therefore not considered in the establishment of the recommended guidelines range. This too is a valid reason for departure. Lerma v. State, 476 So.2d 275 (Fla. 5th DCA 1985) (“clear premeditation”).

Reason number three, that defendant’s pattern of conduct renders him a continuing threat to the community, is based factually on defendant’s prior convictions and on the current conviction, and is an improper basis for a departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985); Smith v. State, 10 FLW 2370 (Fla. 1st DCA October 18, 1985).

Reason number four, that the sexual battery was committed in the presence of the victim’s son and will have a traumatic effect on the victim and the son, i.e., emotional trauma of the victim, has been approved as a valid reason for departure. Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984). In Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985), the court holds that psychological trauma inflicted upon the victim and his family is properly considered as a reason for exceeding the guidelines. We hold the traumatic effect on the victim’s son as well as the victim are valid reasons for departure.

The State concedes the final reason, lack of remorse, is not supported by the record and is not a valid reason for departure. Scurry v. State, 472 So.2d 779 (Fla. 1st DCA 1985).

Therefore, we conclude that three of the five reasons for departure given were valid or clear and convincing reasons for departure. Applying the test of Albritton v. State, 476 So.2d 158 (Fla.1985), we are convinced beyond a reasonable doubt that the trial court would have exceeded the guidelines sentence regardless of the improper reasons stated because of the particular circumstances of the offenses, the heinous, repugnant manner3 of com

mission, and the emotional trauma to the minor child present.

While we affirm the sentence imposed, we certify the following question as one of great public importance:

Affirmed.

BOOTH, C.J., and NIMMONS, J„ concur.

ZEHMER, J., concurs in part and dissents in part.

ZEHMER, Judge,

concurring in part and dissenting in part.

I concur with the majority that grounds two and four are legally sufficient to justify departure from the sentencing guidelines and that ground five is insufficient. I do not agree that the first ground, reciting use of the knife, should be used to aggravate the burglary charge. Both the sexual battery and burglary charges grew out of the same acts in a single episode. As the majority opinion notes, use of the knife is an element inherent in the charge of sexual battery with use of a deadly weapon. That charge was used as the primary offense at conviction for purposes of calculating the sentencing guidelines score. I find it difficult to comport permitting use of this ground with the now-accepted notion that there is “a lack of logic in considering a factor to be an aggravation allowing departure from the guidelines when the same factor is included in the guidelines for purposes of furthering the goal of uniformity.” Hendrix v. State, 475 So.2d 1218 (Fla.1985). To allow use of an essential element "of the primary offense as an aggravating factor in a subordinate or “other” offense amounts to allowing “the trial judge to depart from the guidelines based upon a factor which has already been weighed in arriving at a presumptive sentence” and would be counting such factor twice, “contrary to the intent and spirit of the guidelines.” Ibid.

I would not affirm this sentence under the reasonable doubt standard for appellate review set down in Albritton v. State, 476 So.2d 158 (Fla.1985). The state has presented no argument to us to carry its burden under this test. Moreover, I have encountered substantial difficulty in applying the “reasonable doubt” standard to the review of sentencing guidelines departures because that standard, in effect, requires the appellate court to discern what was in the mind of the sentencing judge by weighing the relative importance the trial judge placed on the various factors recited for departure from the guidelines. I am as offended as the majority at “the heinous, repugnant manner of commission” of the offenses committed by appellant, but this quoted language does not appear in the written reasons assigned by the trial judge. Since we are not the sentencing court, we should not be adding it by inference or implication. In view of my serious concern regarding use of the reasonable doubt standard in reviewing departure from the guidelines, I join in certifying the question stated in the majority opinion.