TONY NOISETTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for first-degree arson was affirmed, but the court struck a restitution award that was not orally pronounced at sentencing, while upholding the trial court's departure from sentencing guidelines based on risk of harm to children and rejecting a claim of abuse of discretion regarding competency examination.
A trial court may impose a departure sentence for first-degree arson when the defendant created substantial risk of harm to children, which is not inherent in the crime itself, but must orally pronounce any restitution requirement at sentencing.
[1] Creating substantial risk of harm to children in a first-degree arson case constitutes a valid, non-inherent aggravating factor justifying departure from sentencing guidelines under Fla. …
[2] Restitution awards must be orally pronounced at sentencing to be valid.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted by jury of first-degree arson after starting a fire in a home where five children resided. The trial court imposed a departure…
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WOLF, Judge.
This is an appeal from a final judgment and sentence rendered after appellant was found guilty by a jury of first-degree arson. Appellant asserts that (1) the trial court improperly departed from the sentencing guidelines; (2) the trial court abused its discretion in failing to conduct an additional competency examination when appellant was indecisive about testifying, and (3) the trial court erred in requiring appellant to pay restitution to the victim where said requirement was not orally pronounced and the state indicated at the hearing that no further money was owed to the victim.
We find that creating a substantial risk of harm to five children who resided in the home where appellant started the fire is not inherent in the crime of first-degree arson and constitutes a valid reason for imposing a departure sentence. § 921.0016(3)(e), Fla.Stat. (1993). We find that the trial court did not abuse its discretion in failing to conduct a second competency determination. As to the third issue, the state properly concedes error. We, therefore, strike that portion of the sentence awarding the victim $473 for restitution. In all other respects, the judgment and sentence are affirmed.
WEBSTER and VAN NORTWICK, JJ., concur.