Johnson v. State, 95-04354
| Decision Date | 12 February 1997 |
| Docket Number | No. 95-04354,95-04354 |
| Citation | 689 So.2d 1111 |
| Parties | 22 Fla. L. Weekly D443 Mark W. JOHNSON, Appellant/Cross Appellee, v. STATE of Florida, Appellee/Cross Appellant. |
| Court | Florida District Court of Appeals |
David T. Weisbrod, Tampa, for Appellant/Cross Appellee.
Robert A. Butterworth, Attorney General, Tallahassee, and Joseph Lee, Assistant Attorney General, Tampa, for Appellee/Cross Appellant.
The appellant was charged by indictment with first degree premeditated murder. A jury found him guilty of manslaughter with a firearm. On this appeal the appellant asserts several issues attacking his conviction and the State raises by cross appeal three rulings of the trial court excluding evidence proffered by the State. We find no merit in the issues raised by the appellant concerning his conviction, thus rendering moot the issues on cross appeal. We affirm the appellant's conviction.
The appellant also challenges his upward departure sentence. His sentencing guidelines scoresheet reflected a maximum guidelines sentence of 123.75 months, or 10.3125 years. The trial court imposed an upward departure sentence of sixteen years. The trial court gave four written reasons for the upward departure, each of which falls within a subsection of section 921.0016, Florida Statutes (1993). The reasons as written by the trial court are:
Offense was one of violence and was committed in a manner especially heinous, atrocious or cruel as reflected by unscored defensive injuries and disarming blow to head. 1 Victim was especially vulnerable due to mental disability. 2 Victim suffered extraordinary physical or emotional trauma which was unscored. 3 Defendant is not amenable to rehabilitation or supervision, as evidenced by an escalating pattern of criminal conduct. 4 [Footnotes added.]
In the case of multiple reasons for departure, we must affirm if any one reason justifies the departure. § 921.001(6). The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a preponderance of the evidence. Id. In this case we conclude that the evidence presented at trial did not reach the level of proof necessary to establish any one of the four reasons given for departure.
As background, we note that the appellant and the victim, Frank Vaccaro, lived together in the victim's town home and on the evening in question had been visiting various bars. Apparently some enmity had arisen between the two. The victim drove home about 10 p.m. without the appellant. The appellant was able to obtain a ride home and arrived there some time after 11 p.m.
Upon arrival the appellant discovered that the gate to the parking area was locked. He forced the gate open and entered the town home through the open garage door. Once inside, he encountered the victim and they began arguing. The appellant entered a vehicle in the garage and exited into the courtyard area.
At that time, the victim came outside and struck the appellant a glancing blow with a portion of an anti-theft motor vehicle device known as "the club." The appellant said he attempted to defend himself by striking the victim with another portion of the club. He exited the vehicle and ran upstairs to the bedroom of the town home.
The victim followed, with his portion of the club device still in his hand. As the victim approached the appellant in the corner of the bedroom, the appellant retrieved a loaded firearm which the victim kept in his nightstand. The appellant testified that as he was holding the firearm the victim grabbed the weapon and it discharged, causing the victim's mortal wound.
There was a great deal of blood on the appellant's hands and face, and blood was also observed in the vehicle garaged at the town home, on the garage floor, on the stairway and landings in the town home, and on part of the club found in the car. When law enforcement arrived, the officers observed the victim lying on the bedroom floor with a gunshot wound in his neck. This wound was the sole cause of his death.
The appellant points out that, first, he was not convicted of an intentional act, but rather culpably negligent manslaughter with a firearm; second, the victim died instantaneously from a gunshot wound; and, third, all the blood found at the scene came from the victim's scalp wound, which bled profusely but did not cause damage to either the victim's skull or brain. The appellant also points out that there was no testimony that such a blow would be disabling. Similarly, the appellant points out that the amount of blood from the scalp wound does not support the conclusion that the blow to the victim's head disarmed him. Further, the appellant argues that there were no significant "defensive injuries" indicating that the victim was beaten by the appellant, as distinguished from receiving injuries as a result of mutual combat.
It was undisputed that the victim was a manic depressive...
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