Bushey v. State

District Court of Appeal of Florida

Bushey v. State

696 So. 2d 906, 1997 Fla. App. LEXIS 7535, 1997 WL 361512

CourtDistrict Court of Appeal of Florida

DecidedJuly 2, 1997

DocketNo. 96-3594

StatusPublished

Cited by1 cases

This text of 696 So. 2d 906 (Bushey v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bushey v. State, 696 So. 2d 906, 1997 Fla. App. LEXIS 7535, 1997 WL 361512 (Fla. Ct. App. 1997).

Pincite

Opinion

STEVENSON, Judge.

Appellant, Edgar Bushey, was tried by jury, convicted of attempted sexual battery upon a person less than twelve years of age, and sentenced to six years in prison. We affirm the conviction but must remand for the trial court to correct the written sentencing order to conform with the trial judge’s oral pronouncements.

Appellant maintains that the evidence was insufficient to sustain his conviction for sexual battery because it conclusively showed that he voluntarily abandoned his criminal objective, and that a conviction in this circumstance amounts to fundamental error. The effect of abandoning a criminal attempt is codified in the Attempt statute:

It is a defense to a charge of criminal attempt ... that, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, the defendant ... [abandoned his attempt to commit the offense or otherwise prevented its commission....

§ 777.04(5)(a), Fla. Stat. (1995).

Appellant must rely on a fundamental error analysis because he never argued the defense of “voluntary abandonment” to the trial court. See Reed v. State, 603 So.2d 69 (Fla. 4th DCA 1992)(explaining that only those grounds raised in a motion for judgment of acquittal are reviewable on appeal).

We need not decide whether uncontrovert-ed evidence of a defendant’s abandonment of his criminal design is a matter for the application of the principles of fundamental error because we do not agree with appellant’s conclusion that the evidence in the instant case irrefutably established his voluntary abandonment. Our review of the record leads us to conclude that the reason for appellant’s failure to complete the crime was properly a question for the trier of fact, and voluntary abandonment of appellant’s criminal purpose was not the only conclusion which the jury could have drawn from the testimony.

At sentencing, the trial court orally pronounced an assessment of attorney’s fees in the amount of $500. The written order, however, imposes $2,500. The State concedes that this is error. See Kord v. State, 508 So.2d 758 (Fla. 4th DCA 1987). Accordingly, we must reverse the $2,500 fee award and remand this cause for the trial court to correct the written order to conform with the oral pronouncement of $500.

[907]*907REVERSED IN PART and REMANDED.

DELL and POLEN, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

STEVENSON, Judge.

Appellant, Edgar Bushey, was tried by jury, convicted of attempted sexual battery upon a person less than twelve years of age, and sentenced to six years in prison. We affirm the conviction but must remand for the trial court to correct the written sentencing order to conform with the trial judge’s oral pronouncements.

Appellant maintains that the evidence was insufficient to sustain his conviction for sexual battery because it conclusively showed that he voluntarily abandoned his criminal objective, and that a conviction in this circumstance amounts to fundamental error. The effect of abandoning a criminal attempt is codified in the Attempt statute:

It is a defense to a charge of criminal attempt ... that, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, the defendant ... [abandoned his attempt to commit the offense or otherwise prevented its commission....

§ 777.04(5)(a), Fla. Stat. (1995).

Appellant must rely on a fundamental error analysis because he never argued the defense of “voluntary abandonment” to the trial court. See Reed v. State, 603 So.2d 69 (Fla. 4th DCA 1992)(explaining that only those grounds raised in a motion for judgment of acquittal are reviewable on appeal).

We need not decide whether uncontrovert-ed evidence of a defendant’s abandonment of his criminal design is a matter for the application of the principles of fundamental error because we do not agree with appellant’s conclusion that the evidence in the instant case irrefutably established his voluntary abandonment. Our review of the record leads us to conclude that the reason for appellant’s failure to complete the crime was properly a question for the trier of fact, and voluntary abandonment of appellant’s criminal purpose was not the only conclusion which the jury could have drawn from the testimony.

At sentencing, the trial court orally pronounced an assessment of attorney’s fees in the amount of $500. The written order, however, imposes $2,500. The State concedes that this is error. See Kord v. State, 508 So.2d 758 (Fla. 4th DCA 1987). Accordingly, we must reverse the $2,500 fee award and remand this cause for the trial court to correct the written order to conform with the oral pronouncement of $500.

[907]*907REVERSED IN PART and REMANDED.

DELL and POLEN, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

696 So. 2d 906, 1997 Fla. App. LEXIS 7535, 1997 WL 361512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bushey-v-state-fladistctapp-1997.

Opinion

Related

Cite This Page — Counsel Stack