EDGAR BUSHEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edgar Bushey was convicted by jury of attempted sexual battery on a child under 12 and sentenced to six years in prison. The Fourth District Court of Appeal affirmed the conviction but reversed and remanded the sentencing to correct the written order imposing $2,500 in attorney's fees to match the trial judge's oral pronouncement of $500.
The court affirmed the conviction because the evidence did not irrefutably establish voluntary abandonment—the reason for the defendant's failure to complete the crime was properly a question for the jury. The court reversed the $2,500 attorney's fee award and remanded for correction to $500 to conform with the oral pronouncement.
[1] A defendant's voluntary abandonment of a criminal objective can serve as a defense to a charge of criminal attempt.
[2] A defendant must raise the defense of voluntary abandonment in the trial court to preserve it for appellate review, unless the issue constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“It is a defense to a charge of criminal attempt ... that, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, the defendant ... [abandoned his attempt to commit the offense or otherwise prevented its commission....”
Establishes the statutory framework for voluntary abandonment as a defense under Florida law
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Join FLexlaw to unlock all legal intelligenceAppellant Edgar Bushey was tried by jury and convicted of attempted sexual battery upon a person less than twelve years of age. He was sentenced to si…
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STEVENSON, Judge.
Appellant, Edgar Bushey, was tried by jury, convicted of attempted sexual battery upon a person less than twelve years of age, and sentenced to six years in prison. We affirm the conviction but must remand for the trial court to correct the written sentencing order to conform with the trial judge’s oral pronouncements.
Appellant maintains that the evidence was insufficient to sustain his conviction for sexual battery because it conclusively showed that he voluntarily abandoned his criminal objective, and that a conviction in this circumstance amounts to fundamental error. The effect of abandoning a criminal attempt is codified in the Attempt statute:
It is a defense to a charge of criminal attempt ... that, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, the defendant ... [abandoned his attempt to commit the offense or otherwise prevented its commission....
§ 777.04(5)(a), Fla. Stat. (1995).
Appellant must rely on a fundamental error analysis because he never argued the defense of “voluntary abandonment” to the trial court. See Reed v. State, 603 So. 2d 69 (Fla. 4th DCA 1992)(explaining that only those grounds raised in a motion for judgment of acquittal are reviewable on appeal).
We need not decide whether uncontrovert-ed evidence of a defendant’s abandonment of his criminal design is a matter for the application of the principles of fundamental error because we do not agree with appellant’s conclusion that the evidence in the instant case irrefutably established his voluntary abandonment. Our review of the record leads us to conclude that the reason for appellant’s failure to complete the crime was properly a question for the trier of fact, and voluntary abandonment of appellant’s criminal purpose was not the only conclusion which the jury could have drawn from the testimony.
At sentencing, the trial court orally pronounced an assessment of attorney’s fees in the amount of $500. The written order, however, imposes $2,500. The State concedes that this is error. See Kord v. State, 508 So. 2d 758 (Fla. 4th DCA 1987). Accordingly, we must reverse the $2,500 fee award and remand this cause for the trial court to correct the written order to conform with the oral pronouncement of $500. REVERSED IN PART and REMANDED.
DELL and POLEN, JJ., concur.
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Mays v. State, 776 So. 2d 1038 (Fla. 1st DCA 2001)…PER CURIAM. AFFIRMED. See Bushey v. State, 696 So. 2d 906 (Fla. 4th DCA 1997). ERVIN, WOLF and PADOVANO, JJ., concur.…
Authorities Cited
- Kord v. State, 508 So. 2d 758 (Fla. 4th DCA 1987)
- Reed v. State, 603 So. 2d 69 (Fla. 4th DCA 1992)