Opinion
No. 95-0987.
May 22, 1996.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Walter N. Colbath, Jr., Judge.
Richard L. Jorandby, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Michelle A. Konig, Assistant Attorney General, West Palm Beach, for Appellee.
The appellant challenges the trial court's upward departure of her sentence for aggravated battery on a person 65 years of age or older, robbery, and burglary of a conveyance. Holding that the evidence supported a finding of extreme emotional trauma, we affirm.
In the course of the robbery of a 90-year-old man, the appellant, who was HIV-positive, bit the victim's arm to the bone. The trial court articulated four reasons for departure: (1) the crime was one of violence and was especially atrocious and cruel; (2) the victim was especially vulnerable due to his age; (3) the victim was diagnosed HIV-positive after the event and suffers extraordinary trauma; and (4) that due to her drug addiction and because she is HIV-positive, the appellant is not amenable to rehabilitation. The court sentenced her to ten years in prison followed by ten years probation.
When multiple reasons are stated to justify departure, a departure will be upheld when at least one reason supports it. See § 921.001 (6), Fla.Stat. (1993); Moore v. State, 634 So.2d 214 (Fla. 4th DCA 1994). In Cooper v. State, 539 So.2d 508 (Fla. 1st DCA), rev. denied, 548 So.2d 662 (Fla. 1989), the first district approved a departure based on an exposure to HIV. We agree that this is a valid reason for departure on the basis of the emotional devastation suffered by the victim as a result of an exposure to this virus, which could give rise to AIDS, a fatal disease. Finding one valid ground for departure, we need not address the remaining grounds.
In her initial brief, the appellant also claims that the trial court failed to file written reasons for the departure. In response, the state moved to supplement the record with the filed written reasons. The appellant did not object to the motion, nor did the appellant file a reply to the state's answer. We therefore affirm on this issue.
Affirmed.
GUNTHER, C.J., and FARMER, J., concur.