Opinion
No. 86-2666.
June 1, 1988.
Appeal from the Circuit Court, Charlotte County, William C. McIver, J.
James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
James LeFresne appeals his judgment and sentence for sexual battery. We only find merit in his argument regarding his sentence.
The appellant's guidelines scoresheet placed the appellant in the recommended sentencing range of nine to twelve years' imprisonment. The trial judge sentenced the appellant to twenty years' imprisonment. He provided the following written reasons in support of the departure:
1. That the victim in the matter was an eighty-seven (87) year old female who lived alone and was unusually vulnerable to such type of attack [citations omitted].
2. That the victim was a female, the Defendant was a male and the crime occurred at night [citations omitted].
Regarding the first reason, it is invalid because there is no showing that as a result of her advanced age the victim suffered more than a younger person would have. See Brown v. State, 483 So.2d 537 (Fla. 2d DCA 1986); Byrd v. State, 516 So.2d 107 (Fla. 4th DCA 1987).
Regarding the second reason, the gender of a victim in and of itself is not a valid reason for departure. Mathis v. State, 515 So.2d 214 (Fla. 1987). Furthermore, the components of this second reason are common to sexual batteries.
Accordingly, we affirm the judgment but reverse the appellant's sentence and remand for resentencing within the guidelines.
RYDER, A.C.J., and THREADGILL, J., concur.