5D04-3922 5D04-4228State v. Edgar Subido

State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-3922

Case Date: 02/27/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

STATE OF FLORIDA, Appellant/Cross-Appellee, v. Case Nos. 5D04-3922; 5D04-4228

EDGAR ALLAN SUBIDO, Appellee/Cross-Appellant. _____________________________________/ Opinion filed March 3, 2006. Appeal from the Circuit Court for Seminole County, Kenneth R. Lester, Jr., Judge. Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee. Raymond L. Goodman, Altamonte Springs, for Appellee/Cross-Appellant.

THOMPSON, J. The State appeals Edgar Allan Subido's downward departure sentence. Subido's scoresheet indicated that his lowest permissible sentence was 108 months' incarceration; the court sentenced him to two years' community control and nine years' probation. Finding no legal basis for the reasons given for departure, we reverse and remand for resentencing.

Because of the nature of the crime and the sentence imposed, we submit the following facts: In January 2004, Subido committed sexual battery while he was in a position of familial authority and while his stepdaughter was asleep, committing a firstdegree felony in violation of sections 794.011(4)(a) and (8)(b), Florida Statutes (2003). 1 He was 43, and his stepdaughter was a 15-year-old ninth-grader. The stepdaughter went to bed around ten that night. She left her bedroom door closed when she went to bed. She woke up because Subido was rubbing his fingers against and inside her vagina. She was laying on her back, but rolled over, at which point he apologized, rubbed her shoulder, kissed her head, and left. Subido admitted in a police interview that he "did digitally penetrate her . . . but that's as far as it went." It was an anniversary of his mother's death, and he had too much to drink. After passing out on a couch, he went upstairs to tell his stepdaughter to do the dishes. She said she was cold, so he "hopped up on the bed and held her." He did not remember clearly, but if his stepdaughter said that [he] had fondled her, then he probably did. He elaborated: I was rubbing her and I put my hand underneath and started rubbing her there . . . [o]n her stomach and around her legs and stuff like that. Just getting her warm . . . [a]nd I guess that I got between her legs and put my finger in her.

"'Sexual battery' means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object . . . ."

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