State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA 1998). · Go Syfert
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State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA 1998). Cases Citing This Book View Copy Cite
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A defendant's crimes are considered isolated incidents if they involve activities never previously engaged in, occur over a short span of time, and involve no prior criminal history.

A defendant convicted of lewd and lascivious acts on a minor moves to modify his prison sentence based on new evidence of remorse. The question presented is whether the trial court properly applied statutory mitigating factors to justify a downward departure from the standard sentencing guidelines. The court applies the rule that statutory terms such as isolated, unsophisticated, and remorseful are not defined by the legislature and must be interpreted reasonably in favor of the accused. The trial court finds the acts were isolated, unsophisticated, and accompanied by genuine remorse. The appellate court affirms the modified sentence, concluding the facts support a downward departure.

28 citation events (18 in the last 25 years) across 1 distinct court.
Strongest positive: State of Florida v. Sherry Crossley-robinson, 275 So. 3d 662 (Fla. 4th DCA 2019)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
How cited ↗
Cited for
At page 1153 Defining isolated incidents in drug distribution cases1 citing casethree sex acts involving a single victim were “isolated” because “they were something the defendant had never engaged in before, in his 25 year lifetime, and they took place in a relatively short span of time.1 citing court put it this way
  • State of Florida v. Sherry Crossley-robinson, 275 So. 3d 662 (Fla. 4th DCA 2019).published
    (three sex acts involving a single victim were “isolated” because “they were something the defendant had never engaged in before, in his 25 year lifetime, and they took place in a relatively short span of time.)
At page 1154 Reviewing statutory grounds for downward sentence departure1 citing case“should be construed liberally in favor of the defendant, the fifth district affirmed the departure, explaining that the defendant's”the opinion's own words at *1154, quoted by 2 later opinions
  • Kilgore v. State, 933 So. 2d 1192 (Fla. 2d DCA 2006).published
    See Perkins v. State, 576 So.2d 1310 (Fla.1991); Ferguson v. State, 377 So.2d 709 (Fla.1979); State v. Merritt, 714 So.2d 1153, 1154 (Fla. 5th DCA 1998); Quinn v. State, 662 So.2d 947 (Fla. 5th DCA 1995); Ivory v. State, 588 So.2d 1007 (Fl…
Other citing cases5 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
STATE of Florida, Appellant,
v.
Carl David MERRITT, Appellee.
97-1698.
District Court of Appeal of Florida, Fifth District.
Jul 24, 1998.
Published opinion
714 So. 2d 1153
1998 WL 412453
W. Sharp.
Cited by 21 opinions  |  Published

Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Childs, Assistant

[*1154] Attorney General, Daytona Beach, for Appellant.

Robert T. Anderson of Cianfrogna, Telfer, Reda, Faherty & Anderson, P.A., Titusville, for Appellee.

W. SHARP, Judge.

The state appeals from the trial court's order which modified Merritt's 76.9 month prison sentence for committing a lewd and lascivious or indecent act on a minor and enticing a minor to commit a lewd, lascivious or indecent act[1] to a downward departure sentence of one year and one day in state prison, followed by one year of community control, followed by six years probation. We affirm.

Merritt was originally sentenced to 76.9 months in state prison. He appealed and that sentence was affirmed by this court. See Merritt v. State, 693 So.2d 42 (Fla. 5th DCA 1997). On May 28, 1997, Merritt moved for a reduction or modification of his sentence. After a hearing at which additional testimony was taken, the trial judge granted Merritt relief and summarized, in a well-reasoned order, its findings and grounds for the departure sentence.

Section 921.0016(4)(j) sets out three mitigating circumstances which, if combined, may justify a downward departure, but it does not define the terms used: an "isolated" incident, committed in an "unsophisticated" manner, and for which the defendant has shown "remorse." The trial court found that the three sex acts committed by Merritt had been "isolated" because they were something the defendant had never engaged in before, in his 25 year lifetime, and they took place in a relatively short span of time. Further, Merritt had no prior criminal history. That appears to us a reasonable interpretation of the statute, keeping in mind that criminal statutes should be construed liberally in favor of the person charged with a crime.[2]

The court also cited grounds to conclude the sex acts were performed in an unsophisticated manner.[3] Further, the court, based on new testimony, concluded that the defendant truly was remorseful about his activities immediately after being accused. The evidence adduced at the hearing supports the court's findings on these points.

The victim's father expressed the view that the defendant should receive at least one year in jail followed by probation and counseling. The officer from the Department of Corrections who prepared the presentence investigation report recommended a sentence of one year of community control, followed by four years of probation. Only the state takes a contrary view.

This appears to us a classic case for imposition of a downward departure sentence in all regards.

AFFIRMED.

COBB, J., and ORFINGER, M., Senior Judge, concur.

1 § 800.4(2) and (3), Fla. Stat. (1995).
2 See Perkins v. State, 576 So.2d 1310 (Fla.1991); Ferguson v. State, 377 So.2d 709 (Fla.1979); Quinn v. State, 662 So.2d 947 (Fla. 5th DCA 1995); Ivory v. State, 588 So.2d 1007 (Fla. 5th DCA 1991).
3 The almost 16-year-old victim did not need to be instructed on how or what to perform; the defendant was nervous and unable to attain an erection, and his acts were artless, simple and not refined.