Fletcher v. State

PER CURIAM.

Jerry Fletcher appeals the judgment and sentence for attempted sexual battery of a child under the age of eleven. We affirm as to all issues except the sentence.

Fletcher’s recommended guidelines sentence was conceded to be within the three and one-half to four and one-half years’ range. The trial court sentenced Fletcher outside the guidelines to a term of twenty years’ imprisonment. The court filed a single written reason for departure from the sentencing guidelines, stating that this case was aggravated because Fletcher had stood in a position of familial authority with the victim and that Fletcher had abused that position of trust.

The trial court, at sentencing, did not have the benefit of the recent supreme court decision of Wilson v. State, 567 So.2d 425 (Fla.1990). Wilson holds that in a case resulting in a conviction for lewd and lascivious assault upon a child under sixteen years of age, a departure sentence cannot be justified if the only ground for departure given by the trial court is that the defendant was in a position of familial authority over the victim. We can conceive of no reason not to apply the same rule to the case before us involving the attempted sexual battery of a child.

Reversed and remanded for sentencing within the guidelines recommendation. Otherwise, affirmed.

FRANK, A.C.J., and PARKER and PATTERSON, JJ., concur.