DAVID PATRICK HESTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Heston appeals his convictions for aggravated assault and culpable negligence, as well as his sentencing. The court affirms the convictions but reverses the sentencing, finding that the trial court improperly departed from guideline sentences by relying on invalid or unsupported reasons.
The court affirms the convictions for aggravated assault and culpable negligence as properly supported by evidence, but reverses the sentencing and remands for resentencing within the presumptive guidelines range, as the trial court's reasons for departure were invalid or unsupported.
[1] A loaded speargun can constitute a deadly weapon for purposes of aggravated assault.
[2] Culpable negligence may be established by a defendant's conduct involving a dangerous instrument, driving, and participation in a joint incident.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While in the companion case we reversed the aggravated assault conviction because an unloaded crossbow was not a deadly weapon, the defendant here used a loaded speargun.”
Explains why the convictions are affirmed in this case despite reversal in the companion case—the defendant used a loaded speargun rather than an unloaded crossbow.
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Join FLexlaw to unlock all legal intelligenceHeston was convicted of aggravated assault (using a loaded speargun) and culpable negligence. His conduct included use of the loaded speargun, driving…
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LEHAN, Judge.
This is a companion case to Heston v. State, 484 So. 2d 84 (Fla. 2d DCA 1986). Defendant is the husband of the defendant in that case. The facts are sufficiently stated in this court’s opinion in that case. Defendant appeals from his conviction for aggravated assault. We affirm. While in the companion case we reversed the aggravated assault conviction because an unloaded crossbow was not a deadly weapon, the defendant here used a loaded speargun.
Defendant also appeals from his conviction for culpable negligence. We affirm. The jury was entitled to conclude from the evidence that defendant’s conduct, including his conduct with the loaded speargun and his driving of the truck, not to mention his joint participation with his wife in the crossbow incident, constituted culpable negligence which caused the accident and injuries.
Defendant further contends that the trial court erred in departing from the recommended guidelines sentence. We agree with this contention. The guidelines recommended sentence was twelve to thirty months in state prison or community control. The trial court sentenced defendant to five year prison terms on each of the four aggravated assault charges and a one year term on the culpable negligence charge, all sentences to run concurrently.
The trial court’s reasons for departing from the guidelines were: (1) that the “incident was outrageous”; (2) that “the chances of rehabilitation of [defendant] were remote”; (3) that “society has the right to be protected from this conduct”; (4)that “it must be clearly established that people do not have the right to take the law into their own hands”; and (5) that defendant was “not [a] fit candidate for probation because of [his] failure to appear at sentencing.” As to reason 1, the circumstances were, in our view, not so egregious as to justify a departure. See Bogan v. State, 489 So. 2d 157 (Fla. 2d DCA 1986). Although defendant’s conduct was unquestionably reprehensible, no valid basis exists to give him a longer sentence for that reason than a sentence given to, for example, a person who, in a calm, cool and calculated manner, commits an assault with a gun. As to reason 2, this was not a clear and convincing reason because there was no factual basis therefor. State v. Mischler, 488 So. 2d 523 (Fla.1986). As to reason 3, this was an invalid reason for departure. See Young v. State, 489 So. 2d 199 (Fla. 2d DCA 1986); Middleton v. State, 489 So. 2d 201 (Fla. 2d DCA 1986); and McCray v. State, 488 So. 2d 912 (Fla. 2d DCA 1986). As to reason 4, that consideration is contemplated in the presumptive guidelines sentence. As to reason 5, this was an invalid reason for departure; the guidelines presumptive sentence called for incarceration, therefore there was no necessity to depart from the guidelines to avoid putting defendant on probation.
We therefore affirm the convictions but reverse and remand for sentencing within the presumptive guidelines sentence.
Affirmed in part, reversed in part.
GRIMES, A.C.J., and SANDERLIN, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stooksbury v. State, 495 So. 2d 845 (Fla. 3d DCA 1986)…ible alternative of incarceration in the county jail, the trial court’s conclusion that the defendant was “an unsuitable candidate to be placed on probation again” is not a clear and convincing reason to deviate from the guidelines. Heston v. State, 490 So. 2d 157 (Fla. 2d DCA 1986); Montgomery v. State, 489 So. 2d 1225 (Fla. 5th DCA 1986). Accordingly, the defendant’s sentence is reversed and the cause remanded for sentencing within the guidelines. Reversed and remanded.…
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Koleta v. State, 592 So. 2d 1267 (Fla. 2d DCA 1992)…ayes v. State, 564 So. 2d 161 (Fla. 2d DCA 1990). We can only observe the proscribed conduct subjecting the defendant to the departure sentence is presumed to be the danger to the community. Keys v. State, 500 So. 2d 134 (Fla.1986); Heston v. State, 490 So. 2d 157 (Fla. 2d DCA 1986). In this case, the defendant’s “flight” does not clearly and convincingly demonstrate the defendant is a danger from which the community had to be protected to the extent of the departure sentence. Because none of the reasons for…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Young v. State, 489 So. 2d 199 (Fla. 2d DCA 1986)
- Middleton v. State, 489 So. 2d 201 (Fla. 2d DCA 1986)
- McCRAY v. State, 488 So. 2d 912 (Fla. 2d DCA 1986)
- Bogan v. State, 489 So. 2d 157 (Fla. 2d DCA 1986)
- Heston v. State, 484 So. 2d 84 (Fla. 2d DCA 1986)