Lamarca v. State, 84-2609
| Decision Date | 03 November 1987 |
| Docket Number | No. 84-2609,84-2609 |
| Citation | 12 Fla. L. Weekly 2517,515 So.2d 309 |
| Parties | 12 Fla. L. Weekly 2517 Anthony LAMARCA, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Jeffrey P. Raffle, Sp. Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Steven T. Scott, Asst. Atty. Gen., for appellee.
Before BARKDULL, HENDRY and BASKIN, JJ.
REVISED OPINION
This appeal by the defendant, Anthony Lamarca, is from judgments of conviction and sentences for the crimes of kidnapping with a deadly weapon and attempted sexual battery with a weapon. We affirm in part and reverse in part.
On February 16, 1984, the prosecutrix herein entered a restroom at the Aventura Mall in northern Dade County. She was combing her hair when the defendant entered the restroom. Upon being informed he was in the ladies room the defendant left. As the prosecutrix started to leave the restroom, the defendant returned and pulled out a medium sized kitchen knife, pointed it at her and forced her into the last stall in the restroom. Thereupon he attempted to commit a sexual battery upon the prosecutrix. On one occasion during the act someone entered the restroom whereupon the defendant ceased his attack and admonished the prosecutrix to remain silent. On another, the defendant and the prosecutrix became aware of another person in the next stall. At this point the prosecutrix grabbed the knife, threw it outside the stall and started to scream. The defendant threw her against the wall and started choking her. He told her to shut up. When he released her the prosecutrix started screaming again, and the defendant ran from the restroom. He was seen pulling up his pants as he ran from the restroom. The defendant was caught by the mall security guards and turned over to the police. The defendant was charged and tried for attempted sexual battery with a weapon and kidnapping with a weapon. The defendant moved for a judgment of acquittal on the kidnapping charge on the basis that the evidence showed the movement and confinement of the prosecutrix was merely incidental to the attempted sexual battery. This motion was denied. The jury returned verdicts of guilty as charged to both offenses. In returning a verdict of guilty as charged on the kidnapping charge the jury failed to make a specific finding as to whether or not a weapon was used. Furthermore, the trial court in its charge to the jury failed to explain the jury's obligation to make a finding as to whether or not a weapon was used, failed to define the use of a weapon as an element of the crime charged and failed to explain the effect of such a finding or the lack thereof in terms of degree or penalty. The trial court adjudicated the defendant guilty of attempted sexual battery. It also reclassified the kidnapping pursuant to Section 775.087(1)(a) Florida Statutes (1983) to kidnapping with a weapon, a life felony. At sentencing the next day, the trial judge notified counsel for both sides that the prosecutrix had previously sought legal advice from the judge's son regarding a possible civil action against the mall's owners arising out of this incident and the trial judge offered to recuse himself from the sentencing in this case. The defendant moved for a new trial alleging this information along with other newly acquired information, which revealed that the prosecutrix had in fact filed suit against the mall, and that said evidence further buttressed the defense at trial that the prosecutrix had falsely accused him of a crime in order to bring a civil suit. Thereupon the trial judge recused himself and another judge was assigned to hear the motion for new trial and for sentencing. The motion for new trial was denied. At sentencing, the guidelines score sheet totaled 317 points with a recommended range of 12 to 17 years. However, the trial court departed from the guidelines and sentenced the defendant to life imprisonment setting forth the following reasons for departure.
"1. The defendant, by committing such an extremely serious and violent crime so soon after his...
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Lamarca v. State, SC03-1815.
...recently been released from prison for a 1984 conviction for kidnapping and attempted sexual battery with a weapon. See Lamarca v. State, 515 So.2d 309 (Fla. 3d DCA 1987). Lamarca asked Tonya to borrow the keys to her car, but Kevin refused and offered to drive Lamarca home instead. The two......
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Marshall v. State
...and remand the cause for sentencing in accordance with the applicable authorities and the sentencing guidelines. Lamarca v. State, 515 So.2d 309 (Fla. 3d DCA 1987)." Marshall v. State, 554 So.2d at 574. In light of the foregoing, it is unmistakably clear that this court's mandate in the pri......
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Ferguson v. State, 87-0714
...by making it easier to commit or substantially lessening the risk of detention. Cf. Faison v. State; Johnson v. State; Lamarca v. State, 515 So.2d 309 (Fla. 3d DCA 1987); Sanborn v. State, 513 So.2d 1380 (Fla. 3d DCA 1987); Taylor v. State, 481 So.2d 97 (Fla. 3d DCA 1986); Carter v. State, ......
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LaMarca v. State
...was thwarted when another woman's presence was detected and the victim screamed, which caused appellant to flee. See Lamarca v. State, 515 So.2d 309 (Fla. 3d DCA 1987). The nonstatutory mitigation found by the trial court included his good behavior at trial (very little weight) and appellan......