Rey v. State, 85-2122
| Decision Date | 21 July 1987 |
| Docket Number | No. 85-2122,85-2122 |
| Citation | 12 Fla. L. Weekly 1766,509 So.2d 1332 |
| Parties | 12 Fla. L. Weekly 1766 Alfonso REY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Steven T. Scott, Asst. Atty. Gen., for appellee.
Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
Appellant was found guilty by a jury of first degree arson, and convicted by the court. A sentence of 10 years' imprisonment was imposed.
Appellant's sole contention on appeal is that the trial court erred in imposing a term of imprisonment of 10 years instead of the presumptive guideline sentence of 3 1/2 to 4 1/2 years. We find no merit in appellant's contention, and affirm.
The reasons provided by the trial court for imposing the longer sentence are as follows:
(1) The [defendant's] criminal conduct created a very real danger of death or physical injury of a large number of innocent people. The fire was set at approximately midnight when other occupants of the apartment building were sleeping. It was only the fast reaction of neighbors once the fire was discovered which prevented a further human tragedy from occurring.
(2) Once the fire was set, the [defendant] showed a total disregard for human life by leaving the area without alerting the sleeping neighbors to the danger which he created.
(3) The fire was set in an apartment building in Little Havana which was in close proximity to four other surrounding apartment buildings in which numerous residents were sleeping.
The reasons provided for departure in essence constitute one reason: that appellant evinced a flagrant disregard for the safety of others in setting this fire in a congested urban area late at night when residents of the area would likely be sleeping. That a defendant has shown a flagrant disregard for the safety of others has been held to constitute a clear and convincing reason for departure. E.g., Scurry v. State, 489 So.2d 25, 29 (Fla.1986) (); Hall v. State, 503 So.2d 1370, 1372 (Fla. 4th DCA 1987) (); Moreira v. State, 500 So.2d 343 (Fla. 3d DCA 1987) (...
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...district courts have used this departure reason when referring to the instant conviction, not the past record. See, Rey v. State, 509 So.2d 1332 (Fla. 3rd DCA 1987); Hall v. State, 503 So.2d 1370 (Fla. 4th DCA 1987); Webster v. State, 500 So.2d 285 (Fla. 1st DCA 1986); Hannah v. State, 480 ......
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