EDUARDO MARTINEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
Eduardo Martinez was convicted of aggravated assault with a firearm and carrying a concealed firearm. The Florida appellate court affirmed the convictions but reversed the sentencing portion because the trial court imposed a consecutive community control sentence as a guideline departure without providing written reasons.
The court affirmed the convictions, finding sufficient evidence of specific intent and well-founded fear despite Martinez's contradictory testimony and the fact that the threat was not communicated in intelligible words. The court reversed the sentencing, finding that the consecutive community control provision was an improper guideline departure lacking written justification.
[1] A jury may reject a defendant's testimony and credit the victim's account of events.
[2] A threat may be conveyed and understood through actions alone, without the necessity of intelligible words.
Previewing 2 of 5 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“a threat need not be accompanied by intelligible words in order to be adequately conveyed and understood; the appellant's actions, as described by Kusmierz, would be sufficient.”
Establishes that a threat can be communicated through conduct alone without verbal words, rejecting Martinez's argument that an incomprehensible threat is not a threat.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMartinez and Eric Kusmierz had a confrontation while driving on Buffalo Avenue in Tampa. After Kusmierz made an obscene gesture, Martinez approached h…
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PER CURIAM.
Eduardo Martinez appeals his conviction and sentence for aggravated assault with a firearm1 and carrying a concealed firearm.2 We affirm the convictions but reverse. the sentence.
Viewing the testimony in the light most favorable to the state, we find the following: The victim of the alleged assault, one Eric Kusmierz, first encountered the appellant when both men were driving their vehicles in the vicinity of Buffalo Avenue in Tampa. After some sort of confrontation Kusmierz became “aggravated” with Martinez and “shot him a bird.” Having reached his destination, Kusmierz sat in his car waiting for the rain to slacken, then exited. Martinez approached speaking excitedly in a language Kusmierz assumed was Spanish. Kusmierz, apparently believing a fight was inevitable, started walking in Martinez’s direction, whereupon the latter pulled a pistol from inside his shirt, waved it about, and pointed it in the direction of Kusmierz’s stomach. Kusmierz testified that he believed he was about to be shot. Most of this encounter was witnessed by an off-duty highway patrolman, who arrested Martinez after tensions had defused.
On appeal Martinez argues that an assault was not proved because (1) the state failed to prove that he possessed the requisite specific intent; State v. Shorette, 404 So. 2d 816 (Fla. 2d DCA 1981); and (2) that Kusmierz lacked a well-founded fear of imminent harm; State v. White, 324 So. 2d 630 (Fla.1975). We disagree on both counts. Much of this argument is bolstered by references to the appellant’s own testimony, which painted rather a different picture than that of Kusmierz, and which the jury was free to reject. Martinez also claims that since Kusmierz did not understand what he was saying, “if he was being threatened he did not know it.” However, a threat need not be accompanied by intelligible words in order to be adequately conveyed and understood; the appellant’s actions, as described by Kusmierz, would be sufficient.
Following the jury verdict the court imposed a sentence of three years in prison (minimum mandatory) followed by two years community control. The guidelines recommended “any non-state prison sanction.” Martinez concedes that Florida Rule of Criminal Procedure 3.701(d)(9) necessitates imposition of the prison sentence because of the use of a firearm in the commission of one of the offenses. Prentice v. State, 469 So. 2d 798 (Fla. 2d DCA 1985). The consecutive community control provision, however, represents a guideline departure. Since written reasons were not provided to support such a departure, this case must be remanded for resentencing within the guideline range. State v. Van Kooten, 522 So. 2d 830 (Fla.1988); Pope v. State, 561 So. 2d 554 (Fla.1990).
Affirmed in part, reversed in part, and remanded with directions.
RYDER, A.C.J., and DANAHY and FRANK, JJ., concur. . § 790.01, Fla.Stat. (1987).
. § 784.021, Fla.Stat. (1987).
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Citator
Cited By
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L.R. v. State, 698 So. 2d 915 (Fla. 4th DCA 1997)…5). Where the victim testifies, the victim’s subjective perception of fear, so long as it is determined to be well-founded, is sufficient to prove the element of fear. See, e.g., Gibbs v. State, 623 So. 2d 551 (Fla. 4th DCA 1993); Martinez v. State, 561 So. 2d 1279 (Fla. 2d DCA 1990); Blanton v. State, 388 So. 2d 1271 (Fla. 4th DCA 1980). The State relied solely on the victim’s testimony to establish the victim’s fear of imminent harm. Taking the evidence in the light most favorable to the State, however, the…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- State v. White, 324 So. 2d 630 (Fla. 1975)
- State v. Shorette, 404 So. 2d 816 (Fla. 2d DCA 1981)
- Prentice v. State, 469 So. 2d 798 (Fla. 2d DCA 1985)