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498 So. 2d 967

498 So.2d 967

11 Fla.L.Weekly 2306

Aleman v. State

District Court of Appeal of Florida

Decided October 31, 1986

District Court of Appeal of Florida · decided 1986-10-31

Cited by 3 later decisions — most recently October 1989

3 state decisions

Relies on 497 So. 2d 736 - Sharp v. State · 493 So. 2d 515 - Baker v. State · 491 So. 2d 1228 - Tyner v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1986-10-31

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GEIMES, Acting Chief Judge.

¶1We find that appellant was properly convicted of sexual battery and burglary of a dwelling. However, his sentence must be reversed because none of the reasons given for departure from the guidelines can stand.

¶2The three reasons for departure and an analysis of their invalidity follows:

¶3Extreme psychological trauma to victim of sexual battery.

¶4On the theory that departures cannot be based on factors common to nearly all crimes in the sentencing category, our supreme court has held that emotional hardship can never constitute a clear and convincing reason for departure in a sexual battery case. Lerma v. State, 497 So.2d 736 (Fla.1986).

¶5*968Unprovoked attack upon an infant child.

¶6While appellant did attack the victim’s child during the course of the sexual battery, appellant was neither charged nor convicted for such attack. Hence, this constituted a factor relating to the instant offense for which a conviction has not been obtained. Fla.R.Crim.P. 3.701(d)(11). Tyner v. State, 491 So.2d 1228 (Fla.2d DCA 1986).

¶7Prior similar acts show a propensity to commit similar acts.

¶8Prior convictions of similar crimes is not a valid reason for departure. Baker v. State, 493 So.2d 515 (Fla. 1st DCA 1986).

¶9We affirm appellant’s convictions but reverse the sentences and remand for resen-tencing within the guidelines’ presumptive sentencing range.

CAMPBELL and LEHAN, JJ„ concur.
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