Blanton v. State, 78-2518

• Citation: 388 So.2d 1271
• Decision Date: 24 September 1980
• Docket Number: No. 78-2518,78-2518
• Parties: Frederick Marsh BLANTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1271

388 So.2d 1271

Frederick Marsh BLANTON, Appellant, v. STATE of Florida, Appellee.

No. 78-2518.

District Court of Appeal of Florida, Fourth District.

Sept. 24, 1980.

Rehearing Denied Nov. 12, 1980.

Geoffrey C. Fleck of Kogen & Kogan, P. A., Miami, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.

ANSTEAD, Judge.

This is an appeal from a final judgment finding Frederick Blanton guilty of aggravated assault with a shotgun and imposing a minimum mandatory sentence of three years' imprisonment followed by two years' probation. On appeal Blanton challenges the sufficiency of the evidence and the legality of his sentence.

At approximately 2:00 p. m. on February 24, 1978, Detective Scotti and Officer Leahey of the Fort Lauderdale Police Department, pursuant to a police investigation, proceeded to the home of Dr. Frederick Blanton. The officers pulled onto the Blanton property just as Dr. and Mrs. Blanton were alighting from their car. The policemen were driving a pickup truck and were dressed in casual clothes. Detective Scotti had met Dr. Blanton and his wife twice before in the preceding year and each time Scotti was dressed similarly. On one occasion Detective Scotti had also been to the Blanton home and had seen Dr. Blanton in possession of a shotgun.

The officers testified that Officer Leahey took out his badge and identified himself and Detective Scotti as policemen. Mrs. Blanton got out of the car and addressed Detective Scotti by name. Dr. Blanton walked directly from his car into his home, turning at one point to look at the officers, but otherwise did not acknowledge their presence. Within seconds, Dr. Blanton appeared at the front door, carrying a shotgun, dropped to one knee, pointed the shotgun at Detective Scotti, who was 30 feet away, and said, "I've got five shots in this gun, and if you don't get off my property, I'll blow your heads off!" Detective Scotti testified that he was in fear of his life. The two officers backed up, walking off the Blanton property. Dr. Blanton was arrested shortly thereafter.

Mrs. Blanton corroborated most of the testimony of the officers, but she denied that Officer Leahey had identified himself upon arrival. She also testified that her husband had a hearing impediment and probably would not have recognized Detective Scotti from his previous visit.

There was expert psychiatric testimony that Dr. Blanton was a paranoid schizophrenic and did not know right from wrong. That testimony was rebutted by another psychiatrist, who examined Dr. Blanton on the state's behalf.

Dr. Blanton was tried by the court without a jury and convicted of assaulting Detective Scotti with a deadly weapon, without intent to kill, in violation of Section 784.021, Florida Statutes (1977). He was sentenced to a mandatory minimum three year sentence pursuant to Section 775.087, Florida Statutes (1977), to be followed by two years probation. The trial court expressed concern about the fairness of the sentence and stated that he would not have imposed as severe a sentence had he not been legally bound to do so by the mandatory provisions of Section 775.087.

Initially, Dr. Blanton maintains that the state failed to establish one of the essential elements of the crime of aggravated assault, namely the existence of an act which creates a well-founded fear in another person that violence is imminent. He contends that the conditional nature of his threat precluded Detective Scotti's fear of imminent violence from being well founded.

In a case involving circumstances very similar to those involved herein, it has been held that the conditional nature of the accused's threat did not preclude the establishment of an aggravated assault. State v. Smith, 348 So.2d 637 (Fla.2d DCA 1977). The lower court had held that the statement, "You step foot inside this house and I'll shoot you," addressed to police officers, was a conditional threat and therefore dismissed the case. The Second District reversed, stating:

In our view the nature of the threat as conditional should have been regarded as evidence going to the issue of whether Deputy Rolling had a well-founded fear that violence was imminent. Though the conditional nature of the threat may well have lessened the probability that Deputy Rolling had a well-founded fear, the evidence was not such that the trial court could have concluded, as a matter of law, that Rolling did not have such a well-founded fear. (footnote omitted)

Likewise, we believe here that the court's finding that Dr. Blanton's conditional threat and pointing of a shotgun placed Detective Scotti in fear of imminent harm, was not contrary to the law and was sufficiently supported by the evidence. ¹ In our view the facts of this case would support an even greater fear of imminent peril than the facts involved in Smith. In Smith the officers were told that they would be shot only if they entered the defendant's home. In other words, the officers would not be harmed if they simply stayed where they were. Here, the officers' safety was jeopardized if they stayed where they were; they were told their heads would be blown off unless they left the property. Since Dr. Blanton appeared to have the capability to carry out his threat...