STATE OF FLORIDA, APPELLANT, CROSS-APPELLEE,
v.
TAI VAN LE, APPELLEE, CROSS-APPELLANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Florida appeals a trial court's downward departure from sentencing guidelines in a second-degree murder conviction, while the defendant cross-appeals his conviction. The court affirmed both the conviction and the downward departure sentence, holding that provocation can constitute a valid reason for downward departure even when insufficient for a self-defense claim, and that sufficient evidence supported the jury's rejection of the self-defense defense.
The court affirmed the downward departure, holding that provocation can be a permissible reason for downward departure even when legally insufficient to support a self-defense finding. The court also affirmed the conviction, holding that the jury was entitled to conclude that defendant could have avoided using deadly force by retreating, as evidenced by defendant's prior successful flight and the officer's testimony.
[1] Provocation can be a permissible reason for downward departure from a sentencing guideline recommendation, even if not legally sufficient to warrant a finding of self-def…
[2] The manner of commission of a crime may be considered in mitigation for sentencing purposes if it has not been factored into the guidelines.
Previewing 2 of 4 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“[T]he provocation was not legally sufficient to warrant a finding that defendant had acted in self-defense. [However], provocation can be a permissible reason for downward departure.”
Establishes that provocation can justify downward departure from sentencing guidelines even when insufficient for self-defense.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant shot and killed the victim after the victim had smashed defendant's car windshield with a hammer, fought with defendant, and chased defendan…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Duty To Retreat cases and more on FLexlaw
LEHAN, Acting Chief Judge.
The state appeals from the trial court’s downward departure from the sentence recommended by the sentencing guidelines upon defendant’s conviction for second-degree murder. Defendant cross-appeals his conviction. The conviction arose from defendant having shot the victim who, according to defendant’s evidence, had advanced upon defendant with a hammer and threatened to kill him. Prior to the shooting the victim had smashed the windshield of defendant’s car with the hammer after having fought with defendant and having chased defendant from the scene with the hammer. It was upon defendant’s return to the scene that the shooting occurred.
We affirm the downward departure. See State v. Mathis, 541 So. 2d 744, 745 (Fla. 3d DCA 1989) (“[T]he provocation was not legally sufficient to warrant a finding that defendant had acted in self-defense. [However], provocation can be a permissible reason for downward departure.”). See also State v. Sacks, 526 So. 2d 48, 50 (Fla.1988) (“[W]e cannot say it is improper also to consider in mitigation the manner of the commission of the crime if it has not been factored.... Although respondent is held strictly accountable under this statute, the sequence of events that resulted in the deaths in this instance tends to show a lesser degree of moral culpability.”).
We affirm the conviction. We disagree with defendant’s contention to the effect that the jury was not entitled to conclude from the evidence that defendant’s act of shooting the victim was not necessary as an act of self-defense, as we will explain.
There was sufficient evidence, or reasonable inferences therefrom, on the basis of which the jury was entitled to conclude that defendant could have avoided that method of defense by retreating. While defendant testified that he could not get away, there was evidence indicating otherwise. Defendant had earlier successfully fled from the victim before returning to the scene, and a police officer who had witnessed the shooting from a distance of over one hundred yards testified that she had observed nothing which would have prevented defendant from retreating. See Baker v. State, 506 So. 2d 1056, 1058 (Fla. 2d DCA), review denied, 515 So. 2d 229 (1987) (when there is sufficient evidence that defendant could have retreated from attack by victim instead of using deadly force to defend himself against the attack, jury is entitled to reject defense of self-defense). An appellate court is not entitled to reweigh evidence which includes sufficient evidence to support the conclusion of the trier of fact. See Tibbs v. State, 397 So. 2d 1120, 1123 (Fla.1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Tsavaris v. NCNB National Bank, 497 So. 2d 1338 (Fla. 2d DCA 1986). Compare Thompson v. State, 552 So. 2d 264 (Fla. 2d DCA 1989) (jury is not entitled to reject defense of self-defense when there is no evidence or reasonable inference therefrom to rebut evidence from defendant in support of that defense, which was corroborated by some state evidence and included evidence that defendant could not have re treated safely instead of using deadly force to defend himself).
We do not agree with defendant’s additional contention on appeal. See Tibbs at 1123; Manuel v. State, 344 So. 2d 1317, 1320 (Fla. 2d DCA 1977).
Affirmed.
THREADGILL and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hines v. State, 817 So. 2d 964 (Fla. 2d DCA 2002)…2d 288, 296 (Fla. 2001) (allowing the trial court to impose a downward departure sentence in a statutory rape case based on the victim as a willing participant despite the fact that consent is not a legal defense to the crime); State v. Tai Van Le, 553 So. 2d 258, 259 (Fla. 2d DCA 1989) (affirming a downward departure sentence in a murder case based on the victim as the aggressor despite the fact that the jury apparently rejected the defendant’s claim of self-defense); State v. Mathis, 541 So. 2d 744, 745 (F…
-
Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997)…alated the situation. Because there was evidence which would support a jury’s conclusion that Hunter’s acts did not comport with the law regarding self-defense, the court properly denied his motion for judgment of acquittal. See State v. Tai Van Le, 553 So. 2d 258 (Fla. 2d DCA 1989) (second degree murder conviction upheld where nothing prevented defendant from retreating). Accordingly we affirm Hunter’s conviction for second degree murder. Hunter raises two other points on appeal, which have no merit. AFFIR…
-
Jenkins v. State, 942 So. 2d 910 (Fla. 2d DCA 2006)…it hidden behind him as the three men approached and that nothing prevented the defendant from getting in his car and driving away). In still others, the fatal blow is made after the danger from an attack has passed. See, e.g., State v. Tai Van Le, 553 So. 2d 258 (Fla. 2d DCA 1989) (victim initially confronted defendant with a hammer and broke his windshield; defendant escaped and returned with a gun, which he used when victim threatened and attacked him again); Pressley v. State, 395 So. 2d 1175 (Fla. 3d DC…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tibbs v. Florida, 457 U.S. 31 (U.S. 1982)
- Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)
- State v. Sachs, 526 So. 2d 48 (Fla. 1988)
- Tsavaris v. NCNB Nat'l Bank OF Fla. & Neofytos Theodore Tsangaris, 497 So. 2d 1338 (Fla. 2d DCA 1986)
- Baker v. State, 506 So. 2d 1056 (Fla. 2d DCA 1987)
- Manuel v. State, 344 So. 2d 1317 (Fla. 2d DCA 1977)
- Thompson v. State, 552 So. 2d 264 (Fla. 2d DCA 1989)
- State v. Torrance Mathis, 541 So. 2d 744 (Fla. 3d DCA 1989)