SEAN MCCALLISTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sean McCallister appeals his conviction and sentence for attempted voluntary manslaughter with a firearm and shooting a deadly missile into an occupied vehicle after shooting victim Michelle Vrotny in the head during a road rage incident. The Fourth District Court of Appeal affirms, holding that attempted voluntary manslaughter is properly classified as a second degree felony when a firearm is used, and that an upward departure from sentencing guidelines was supported by the victim's permanent injuries.
Attempted voluntary manslaughter is properly reclassified as a second degree felony when a jury specifically finds that the defendant used a firearm in the commission of the offense. An upward departure from guideline sentencing is appropriate when supported by evidence of the victim's extraordinary physical trauma or permanent physical injury.
[1] Attempted voluntary manslaughter is reclassified as a second-degree felony when a jury specifically finds that the defendant used a firearm in the commission of the offen…
[2] A trial court may depart upward from a guideline sentence when the victim suffered extraordinary physical or emotional trauma, permanent physical injury, or was treated w…
Previewing 2 of 3 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“Attempted voluntary manslaughter is a third degree felony. See § 777.04(4)(d), Fla. Stat. (1997). However, attempted voluntary manslaughter is properly reclassified as a second degree felony where a jury specifically finds that the defendant used a firearm in the commission of the offense.”
Establishes the legal standard for enhancement of attempted voluntary manslaughter based on firearm use
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Join FLexlaw to unlock all legal intelligenceMcCallister was driving to work when Vrotny's car cut him off. He chased her vehicle, pointed a gun at her head, threatened to shoot her, and fired, s…
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GROSS, Judge.
Sean MeCallister appeals two aspects of the sentence imposed after a jury found him guilty of attempted voluntary manslaughter with a firearm and shooting a deadly missile into an occupied vehicle. We affirm.
MeCallister was driving to work when a car driven by the victim, Michelle Vrotny, cut him off. He began to chase her car, swerving in and out of traffic. As he continued driving, MeCallister pointed a gun at Vrot-ny’s head, and said “I’ll blow your ... head off.” Then he shot her in the head.
A neurosurgeon removed bullet fragments, bone "fragments, hair, and-skin from the wound. Vrotny regained consciousness a day or two after the surgery. She could not speak, follow simple commands, or move the right side of her body. She suffered permanent brain damage. In the future, Vrotny faces the possibility of an infection in her brain, although the risk will lessen over time. She has experienced seizures, a condition that will not subside. The victim testified that as a result of the shooting, she has lost her sense of smell and taste, suffers from memory loss, and continues to be paralyzed on her right side.
MeCallister first contends that on the sentencing guidelines scoresheet, the trial court improperly scored attempted voluntary manslaughter with a firearm as a second degree felony.
Voluntary manslaughter is a second degree felony. See § 782.07(1), Fla. Stat. (1997). Attempted voluntary manslaughter is a third degree felony. See § 777.04(4)(d), Fla. Stat. (1997). However, attempted voluntary manslaughter is properly reclassified as a second degree felony where a jury specifically finds that the defendant used a firearm in the commission of the offense. See Brown v. State, 661 So. 2d 309 (Fla. 1st DCA 1995) (attempted manslaughter with a firearm is a felony of the second degree); Ammons v. State, 623 So. 2d 807 (Fla. 1st DCA 1993) (attempted manslaughter with a firearm is reclassified from a third degree felony to a second degree felony because the firearm was involved); Williams v. State, 596 So. 2d 679 (Fla. 2d DCA 1991) (attempted manslaughter was enhanced by the use of a firearm to a second degree felony); § 775.087(l)(c), Fla. Stat. (1997).
Here, the jury found that defendant did “carry, display, use, threaten to use or attempt to use a firearm during the commission of’ attempted voluntary manslaughter. Thus, count one was properly reclassified as a second degree felony.
On this issue, MCCallister relies on Green v. State, 691 So. 2d 502, 503 n. 1 (Fla. 5th DCA), approved, 715 So. 2d 259 (Fla.). In Green, the fifth district noted that the defendant appealed his sentence imposed “for one count of attempted voluntary manslaughter with a firearm, a third degree felony.” After its reference to the degree of felony, Green cited to sections 782.07 and 777.04(4)(d), without reference to section 775.087(l)(c), which provides for enhancement where a firearm is used in the commission of an offense. Section 775.087(l)(c) may not have been at issue in Green because of the way the crime was charged or tried. The felony classification of attempted voluntary manslaughter with a firearm was not analyzed in Green; it was simply part of the statement of facts. The supreme court’s decision approving Green concerned the application of the sentencing guidelines and not the degree of the felony at issue in this ease. See Green, 1998 WL at 394014. Because we find no express and direct conflict, we decline to certify conflict with Green pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv).
On the second issue, the trial court’s upward departure from the guideline sentence was based on section 921.0016(i), Florida Statutes (1997), in that the “victim suffered extraordinary physical or emotional trauma or permanent physical injury, or was treated with particular cruelty.” The testimony of the neurosurgeon and the victim provided an ample factual basis for the sentence. Because this reason supports the departure sentence, it is not necessary to consider the court’s alternative ground. See Jackson v. State, 662 So. 2d 1369, 1372 (Fla. 1st DCA 1995); § 921.001(6), Fla. Stat. (1997).
AFFIRMED.
FARMER and STEVENSON, JJ., concur.
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Manassah Junior Paul v. State, 722 So. 2d 224 (Fla. 3d DCA 1998)…rom a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies departure regardless of the presence of other [*226] circumstances or factors found not to justify departure. See also McCallister v. State, 716 So. 2d 821, 822 (Fla. 4th DCA 1998); Jackson v. State, 662 So. 2d 1369, 1372 (Fla. 1st DCA 1995). Therefore, because we find that the other aggravating factors were supported, we affirm the upward departure of Paul’s sentence to life imprisonment. . Given the…
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Antolin Ruiz v. State, 835 So. 2d 283 (Fla. 5th DCA 2002)…[*284] PER CURIAM. AFFIRMED. See McCallister v. State, 716 So. 2d 821 (Fla. 4th DCA 1998). COBB, SHARP, W., and PALMER, JJ., concur.…
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Valdriche v. State, 807 So. 2d 169 (Fla. 3d DCA 2002)…[*170] PER CURIAM. No error has been demonstrated either on the substantive point presented, see Johnson v. State, 786 So. 2d 1162 (Fla.2001), or in the upward departure sentence. § 921.0016(3), Fla. Stat. (1997). See McCallister v. State, 716 So. 2d 821 (Fla. 4th DCA 1998); Semenec v. State, 698 So. 2d 900 (Fla. 4th DCA 1997); Davis v. State, 700 So. 2d 130 (Fla. 4th DCA 1997). Affirmed.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Valease Jackson v. State, 662 So. 2d 1369 (Fla. 1st DCA 1995)
- Deno S. Green v. State, 691 So. 2d 502 (Fla. 5th DCA 1997)
- Brown v. State, 661 So. 2d 309 (Fla. 1st DCA 1995)
- Ammons v. State, 623 So. 2d 807 (Fla. 1st DCA 1993)
- Williams v. State, 596 So. 2d 679 (Fla. 2d DCA 1991)
- Deno S. Green v. State, 715 So. 2d 259 (Fla. 1998)