Gale v. State, BD-446
| Decision Date | 23 January 1986 |
| Docket Number | No. BD-446,BD-446 |
| Citation | 11 Fla. L. Weekly 276,483 So.2d 53 |
| Parties | 11 Fla. L. Weekly 276 Lee Arthur GALE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Gregory G. Costas, Asst. Atty. Gen., for appellee.
Gale appeals his convictions for burglary of a dwelling while armed robbery, sexual battery with a deadly weapon, and sexual battery by use of force. It is his contention that the trial court erred in denying his motion for a mistrial based upon the allegedly prejudicial comments of the prosecutor, in departing from the sentence recommended for him under the guidelines, and in retaining jurisdiction over the first one-third of his sentence. We affirm in part and reverse in part.
On cross-examination, Gale conceded that he had earlier been convicted of a felony. Thereafter, during closing argument, the prosecutor stated to the jury:
First of all, Lee Arthur Gale is a convicted felon. He admitted to it on the stand. He knows the ropes. He knows what could happen to him in this situation. And if he's convicted, he has a lot to lose. And that is an interest.... [Emphasis added.]
At this point, Gale's attorney objected and moved for a mistrial. The motion was denied.
The recommended guidelines sentence range was for 12 to 15 years, however, Gale received a sentence of 150 years, which breaks down as follows: 60 years on armed burglary, 15 years on robbery, 60 years on sexual battery by use of a deadly weapon and 15 years on the charge of sexual battery by slight force. The trial judge, in a comprehensive sentencing order, set forth a number of reasons for his departure. They can be briefly paraphrased and summarized as follows:
1. The guidelines sentence was not commensurate with the seriousness of the convicted offenses.
2. Appellant committed the instant offense within one month of the commission of a similarly vile offense indicating disregard on Appellant's part for the consequences of his actions in terms of their effect upon the victims and the law in general.
3. The outrageous nature and circumstances of the offenses for which Appellant stands convicted herein.
4. The trauma associated with Appellant's conduct sub judice.
5. Appellant showed no remorse for his crimes.
6. Appellant's conduct while incarcerated within the county jail.
7. Appellant's juvenile record evidencing a disrespect for authority.
8. Appellant presents a clear and present danger to others both in and out of prison--the prison system being in a better position to protect itself than society.
Turning to the first issue on appeal, it is well settled that a prosecutor may legitimately comment upon the credibility of an accused who chooses to testify so long as he confines his argument to those facts which are established by the record or which may be reasonably inferred. Fitzgerald v. State, 227 So.2d 45 (Fla. 3d DCA 1969). In the present case, the prosecutorial statement that Gale "knows the ropes" could have reasonably been inferred from his previous encounter with the criminal justice system which he admitted on the stand. Therefore, we find no error.
As to the trial judge's departure from the sentence recommended under...
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