
    Perry Lee SHAW, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 87-0006.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1987.
    
      Richard A. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Jr., Atty. Gen., and Carolyn V. McCann, Tallahassee, for appellee.
   WALDEN, Judge.

Appellant, Perry Lee Shaw, Jr., appeals a three year sentence imposed pursuant to a robbery conviction. On May 13, 1986 appellant committed a robbery in a grocery store in Okeechobee County. In the process of the robbery, appellant injured a store clerk, Charlene Wheeler, by striking her in the face. As a result of the blow, Mrs. Wheeler suffered a permanent or semi-permanent bruise on her face approximately the size of a quarter. Also as a result of the incident, Mrs. Wheeler became “a nervous wreck” and allegedly suffered emotional trauma.

Appellant pled no contest to the robbery charge. At the sentencing hearing, no expert testimony was presented regarding the permanency of the victim’s bruise. Mrs. Wheeler did not attend the sentencing hearing, allegedly because she was deathly afraid of appellant. Mrs. Wheeler’s husband testified that his wife’s injury had not improved since the date of the robbery. Mr. Wheeler and the owner of the grocery store testified as to their monetary damages. Appellant testified he was “willing to pay restitution on all the amounts that have been given” to the court. The trial judge did not inquire into appellant’s ability to make restitution.

The trial court entered a judgment of conviction against appellant for robbery under § 812.13, Florida Statutes, and stated its intention to depart from the recommended guidelines. The trial court orally sentenced appellant to three years incarceration followed by three years probation, with credit for time served, and orally ordered appellant to make restitution of $492.00 as a condition of probation. Appellant did not object to the order of restitution. The court also gave written reasons for departure from the guidelines based on “Moderate victim injury which includes permanent or semipermanent physical and psychological scarring and injury.”

The issues on appeal are twofold. First, appellant claims the trial court erred in departing from the recommended guidelines range based on the alleged injury. Second, appellant claims the trial court erred in ordering him to pay restitution.

With regard to departure from the guidelines based on psychological injury, we note initially that the type of psychological trauma to a victim that usually and ordinarily results from being a victim of the charged crime is inherent in the crime and may not be used to justify departure. Ochoa v. State, 509 So.2d 1115 (Fla.1987); State v. Rousseau, 509 So.2d 281, 283-285 (Fla.1987). The causing of fear and resulting psychological trauma is by statutory definition an inherent component of the crime of robbery, and thus not a valid reason for departure in this case. Section 812.13(1), Florida Statutes (1985), defines robbery as “the taking of money or other property which may be the subject of larceny from the custody of another by force, violence, assault, or putting in fear.” § 812.13(1), Fla.Stat. (1985) (emphasis added). There may be instances where the psychological trauma resulting from a robbery is so extreme that a departure is justified. See e.g. Davis v. State, 458 So.2d 42, 44 (Fla. 4th DCA 1984), approved, 477 So.2d 565 (Fla.1985) (“The facts show something more than a simple robbery. The young male defendant chose a relatively helpless female to terrorize, kidnap and promise to kill while holding a gun at her head rendering her ‘madly hysterical.' Little of this was required to snatch her purse and his behavior was repugnant and odious.”) Psychological trauma to the victim may also constitute a clear and convincing reason for departure when the victim has a discernible physical manifestation resulting from the psychological trauma. Rousseau, 509 So.2d at 283-284.

Although the record indicates Mrs. Wheeler suffered a physical manifestation from the physical injury, the record below contains no showing that Mrs. Wheeler suffered any discernible physical manifestation from the psychological trauma. Although Mr. Wheeler testified that his wife used to be very garrulous and became timid after the robbery, the record below is insufficient to conclude Mrs. Wheeler suffered psychological trauma unusually greater than that ordinarily involved in a robbery. See e.g. Williamson v. State, 496 So.2d 886, 887-888 (Fla. 2d DCA 1986) (the record in an armed robbery did not reveal that the victim suffered trauma unusually greater than ordinarily involved in an armed robbery), citing State v. Cote, 487 So.2d 1039 (Fla. 1986) (holding that the causing of fear and resulting psychological trauma is by statutory definition an inherent component of the crimes of assault and aggravated assault).

With regard to departure based on physical injury, although victim injury may be used as a reason to depart from the guidelines for a robbery conviction where the injury is not an element of the crime at conviction, “slight” victim injury may not constitute a clear and convincing reason for departure. Smith v. State, 484 So.2d 649 (Fla. 4th DCA 1986). The trial court’s written reason for departure does not indicate whether its finding of “moderate victim injury” would apply to either the physical injury or the psychological injury if considered separately, or whether the finding of “moderate” injury was only intended to apply to the cumulative effect of both injuries. The minimal facts in the record do not enable this court to decide whether Mrs. Wheeler’s physical injury standing alone was “slight” rather than “moderate”, and we find it unnecessary to reach such a decision. Since the trial court improperly departed from the guidelines based on psychological trauma, the state has the burden of showing beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence. Albritton v. State, 476 So.2d 158 (Fla. 1985). The state has not met this burden. Therefore the cause is reversed and remanded under the authority of Albritton.

The order of restitution is affirmed. The cause is remanded for resentencing in accordance with this opinion.

STONE, J., concurs.

GLICKSTEIN, J., concurs in part and dissents in part with opinion.

GLICKSTEIN, Judge,

concurring in part and dissenting in part.

I concur that the order of restitution should be affirmed but also am of the view that the departure here from the guidelines was legally supportable.

PHYSICAL INJURY

Florida Rule of Criminal Procedure 3.988(f) scores victim physical injury as none (0), slight (3), moderate (6) and death or severe (9), but only if the physical injury was an element of the crime. The injury here was not an element of the crime. It would seem logical that if “slight”, “moderate” and “severe” injury could have been scored if an element of the crime, “slight”, “moderate” or “severe” injury could similarly have been a basis for departure if not an element. Yet another panel of this court, saying it could find no authority for doing otherwise, would not recognize “slight” injury — not an element of the crime — as a basis for departure. See Smith v. State, 484 So.2d 649 (Fla. 4th DCA 1986). I assume the trial judge here was aware of Smith. He called the injury “moderate”, not “slight”, and I conclude there is no reason for this court to view it otherwise. In my opinion, the trial judge correctly departed from the guidelines on the question of physical injury.

For the information of the bar and bench, mention is made of the Supreme Court’s decision in Florida Rules of Criminal Procedure re Sentencing Guidelines (rules 3.701 and 3.988), 509 So.2d 1088 (Fla.1987) which specifically deals with the question of how physical injury per se, is to be scored in the future. Encompassed in that opinion is the following—

VI.

The next issue to be considered relates to victim injury. The present guidelines score physical victim injury if that injury is an essential element of the crime for which the defendant is convicted. They exclude nonphysical injury and physical injury if the injury is not an element of the crime. The commission recommends that victim injury be scored whether or not it is an element of the crime if, in fact, injury occurred during the offense which led to the conviction. It also seeks to include psychic as well as physical trauma in victim injury.
We see merit in scoring physical injury if a defendant physically injures the victim of the offense during the course of a criminal episode, regardless of whether the injury is an element of the crime, but do not believe it wise to extend the definition of injury to include psychic injury. There are too many variables and too many subjective factors to score psychic injury objectively. This type of injury has been recognized as a legitimate ground for departure in some circumstances; it is better to allow psychic injury as a consideration for departure in appropriate cases than to enter the jungle of confusion by attempting to quantify psychic victim injury. Additionally, we feel it is appropriate for victim injury to be scored for each victim injured during a criminal episode. We therefore amend rule 3.701.d.7 to read: “Victim injury shall be scored for each victim physically injured during a criminal episode or transaction.”

Furthermore the opinion states:

Paragraph (d)(7) of the committee note to rule 3.701 is amended as follows:

(d)(7) This provision implements the intention of the commission that points for victim injury be added for each victim injured during a criminal transaction or episode. The injury need not be an element of the crime for which the defendant is convicted, but is limited to physical trauma. However, if the victim injury is the result of a crime for which the defendant has been acquitted, it shall not be scored,

(emphasis omitted). Future departure cases will be governed by Chapter 87-110, Section 2, Laws of Florida, which inserts new subsection (7) of section 921.001, Florida Statutes, providing as follows:

A court may impose a sentence outside the guidelines when credible facts proven by a preponderance of the evidence demonstrate that the victim suffered excessive physical or emotional trauma at the hands of the defendant. Such departure is not barred because victim injury has been utilized in the calculation of the guidelines sentence.

(emphasis added).

PSYCHOLOGICAL INJURY

In State v. Rousseau, 509 So.2d 281 (Fla. 1987), the Supreme Court implicitly said that psychological trauma which is different from that which usually results from being a victim of the charged crime is a basis for departure. Here, the victim was not only robbed but was struck in the face and suffered an adverse reaction to the defendant’s subsequent communication with her. The trial judge described the result as “[mjoderate victim injury which includes permanent or severe physical and psychological scarring and injury.” I see no reason for disapproval of this trauma as a basis for departure when terror was so recognized in Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984), approved, 477 So.2d 565 (Fla.1985) and Green v. State, 455 So.2d 586 (Fla.2d DCA 1984), although there was no mention in those cases of permanency or of physical injury.

As for the future, departure cases will be determined by the 1987 legislation and Rousseau.  