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497 So. 2d 671

497 So.2d 671

11 Fla.L.Weekly 2215

Cortez v. State

District Court of Appeal of Florida

Decided October 15, 1986

District Court of Appeal of Florida · decided 1986-10-15

Cited by 1 later decisions — most recently May 2016

1 state decisions

Relies on 476 So. 2d 158 - Albritton v. State · 475 So. 2d 1218 - Hendrix v. State · 483 So. 2d 115 - Tompkins v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1986-10-15

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PER CURIAM.

¶1Appellant appeals his sentence resulting from a conviction for aggravated child abuse. Appellant has raised several issues on appeal, but merit is found only in the allegation that the court impermissibly departed from the sentence recommended by the guidelines. The written reasons set forth by the court for departing were (1) psychological abuse attending the physical injury and (2) degree of victim injury.

¶2The presentence investigation report as well as medical testimony presented at sentencing amply supported the court’s conclusion that lingering psychological effects will continue as a result of the injury inflicted. Since psychological trauma is a valid reason for departure, Tompkins v. State, 483 So.2d 115 (Fla. 2d DCA 1986), the court was correct in using this as a reason for departure. The court also departed by reason of the degree of victim injury, a factor for which scoresheet points were assessed. Since it is improper to base a departure on a reason which has already been weighed in arriving at the presumptive sentence, Hendrix v. State, 475 So.2d 1218 (Fla.1985), reason two is invalid.

¶3Faced with evaluating two reasons where one is valid and one is invalid, we have not been convinced beyond a reasonable doubt that the trial judge would have nevertheless departed. Albritton v. State, 476 So.2d 158 (Fla.1985). Accordingly, we affirm appellant’s conviction but reverse and remand for resentencing.

GRIMES, A.C.J., and RYDER and HALL, JJ., concur.
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