Pittman v. State, 85-1109
| Decision Date | 03 December 1986 |
| Docket Number | No. 85-1109,85-1109 |
| Citation | 11 Fla. L. Weekly 2552,498 So.2d 592 |
| Parties | 11 Fla. L. Weekly 2552 Joseph I. PITTMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee.
The appellant, Joseph Pittman, was convicted of one count of attempted first degree murder, one count of aggravated assault, two counts of aggravated battery, and one count of arson in the first degree. He contends here that the evidence was insufficient to convict him of attempted first degree murder and of aggravated battery. Pittman also asserts error in the trial court's failure to grant him a new trial and in its failure to sentence him within the sentencing guidelines. We affirm in part, reverse in part, and remand for resentencing.
Pittman was accused of attempting to murder Johnny Starling, Joy Starling, their daughter Deirdre Starling, and a family friend, William Campbell. After an altercation at the Starling residence that concluded when Johnny Starling ordered Pittman out of his home, Pittman muttered something about being a "madman." He later returned, set a fire at the back door, went to the front door, and threw a can of burning gasoline into the living room where the Starlings, Deirdre, and William Campbell were present. As he threw the gasoline Pittman shouted, "I've got you now, you m--f--ers." Mrs. Starling suffered some flash burns, and Mr. Starling burned his hand when he picked up the burning gasoline can to throw it out of the house. Deirdre Starling and William Campbell were untouched by the flaming gasoline.
Pittman argues on appeal, as he did in the trial court, that the evidence was insufficient to convict him of attempted first degree murder. We disagree. The record reveals more than ample evidence from which the jury could deduce that Pittman intended to kill the occupants of the Starling home. Most striking and probative were Pittman's own words.
Pittman, however, advances another contention with which we do agree: the evidence was insufficient to convict him of aggravated battery. Pittman's attorney requested an aggravated battery charge as to Mrs. Starling on the theory that she was injured by flash burns and the flaming gas can could be considered a deadly weapon. When the trial court instructed the jury on the charges involving Deirdre Starling and William Campbell, Pittman failed to object. Nevertheless, after the jury returned verdicts finding him guilty of aggravated battery, and not attempted first degree murder as to Deirdre Starling and William Campbell, he asked for a new trial on the ground that the evidence was insufficient to sustain that finding. Thus, he properly preserved this issue for appeal. Mancini v. State, 273 So.2d 371 (Fla.1973); see Sanderson v. State, 390 So.2d 744, 745 n. 2 (Fla. 5th DCA 1981).
The state has conceded that there was no showing of any injury to or touching of Deirdre Starling or William Campbell, and none appears in the record. Thus, an essential element of any...
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Connell v. State, 86-496
...was a matter "inherent within the crime for which defendant was convicted" and therefore could not support departure. See Pittman v. State, 498 So.2d 592 (Fla.1986). Since we find all four reasons invalid, we affirm the conviction, but reverse and remand the sentences with instruction that ......