Green v. State, 84-132
| Decision Date | 05 September 1984 |
| Docket Number | No. 84-132,84-132 |
| Parties | Ruben GREEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Ruben Green was convicted of shooting into a building, contrary to section 790.19 Florida Statutes (1983). In this appeal, he challenges a two and one-half year sentence imposed outside the recommended sentence of "any nonstate prison sanction." We affirm.
On the evening of August 16, 1983, defendant followed Ella Mae Green, his sister-in-law, to her mother's residence. Ella Mae Green drove her vehicle into and across the yard, rather than the driveway, in order to get as near the entry to the residence as possible before alighting from her car. Convinced by defendant's earlier actions and threats that defendant intended her bodily harm, Ella Mae jumped out of the automobile, ran to the house, broke a glass pane in the door with her elbow, and opened the door from the inside in order to gain immediate entry. Once inside, she peeked out the door and observed defendant speaking with her mother. Using foul language, defendant commanded Ella Mae Green's mother in no uncertain terms to tell Ella Mae that he was going to kill her. Ella Mae called out to defendant, Defendant then fired two shots in her general direction. One bullet was recovered from the door frame. No one was physically injured during the incident. However, at trial, Ella Mae Green briefly described her fear of defendant.
Defendant's recommended sentence was "any nonstate prison sanction." However, the sentencing judge imposed a sentence of thirty months in state prison. On the scoresheet, the judge offered the following reason for deviation from the recommended sentence:
Serious mental strain and/damages on victims occasioned by his threats in the past and threats to do damage in the future.
Departures from the presumptive sentence should be avoided by the sentencing judge unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Fla.R.Crim.P. 3.701 d. 11. These reasons shall be articulated in writing. Fla.R.Crim.P. 3.701 b. 6. Defendants are afforded appellate review of the sentencing judge's decision to impose sentence outside the recommended sentence range. Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984). However, the appellate court's role is limited to assuring that the sentencing judge did not commit an abuse of discretion in exercising his discretion to sentence outside the guideline range. Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984).
Defendant contends that the sentencing judge erred in considering psychological trauma as a reason for departure because the...
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