Rodriguez v. State

District Court of Appeal of Florida

Rodriguez v. State

594 So. 2d 318, 1992 Fla. App. LEXIS 1027, 1992 WL 21892

CourtDistrict Court of Appeal of Florida

DecidedFebruary 11, 1992

DocketNo. 88-1789

StatusPublished

Cited by1 cases

This text of 594 So. 2d 318 (Rodriguez 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.

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Rodriguez v. State, 594 So. 2d 318, 1992 Fla. App. LEXIS 1027, 1992 WL 21892 (Fla. Ct. App. 1992).

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SCHWARTZ, Chief Judge.

Treating the only substantive point which merits discussion, we hold that the defendant’s act of pointing a pistol at the victim to secure acquiescence to his acts of simple battery by non-consensually touching her intimate areas, involved the “use” of a deadly weapon in the commission of the battery within the meaning of sub-subsection (l)(a)2 of the aggravated battery statute, § 784.045, Fla.Stat. (1989).¹ Gaston v. State, 672 S.W.2d 819, 821 (Tex. App.1983) (“Appellant here argues that since he did not physically move the gun, point it or threaten to shoot defendant, he did not ‘use’ the gun as the statute requires. We do not believe the word ‘use’ can be so narrowly construed. It was the presence of the gun in appellant’s hand that instilled fear in complainant and made her feel threatened with bodily injury. When appellant had one hand over complainant’s mouth, the other was holding the shotgun in very close proximity to complainant’s body. To say appellant did not ‘use’ the gun would be to totally negate it as a factor in the incident. That simply is not the case.”). Accord State v. Pruitt, 94 N.C.App. 261, 380 S.E.2d 383 (1989), review denied, 325 N.C. 435, 384 S.E.2d 545 (1989); May v. State, 660 S.W.2d 888 (Tex.App. 1983), aff’d, 722 S.W.2d 699 (Tex.Crim.App. 1984). See generally Lareau v. State, 573 So.2d 813 (Fla.1991). Hence, the aggravated battery conviction is affirmed.

As the parties agree, the guidelines score sheet should be amended to eliminate the twenty-four points which were erroneously assessed for victim injury. See Northcut v. State, 493 So.2d 85 (Fla. 4th DCA 1986). No remand for resentencing is required, however, because the recalculation does not affect the applicable cell. See Hayward v. State, 590 So.2d 976, 976 n. 3 (Fla. 5th DCA 1991); Sellers v. State, 578 So.2d 339 (Fla. 1st DCA 1991), approved, 586 So.2d 340 (Fla.1991).

There is no merit in the appellant’s remaining point.

Affirmed as modified.

BARKDULL, J., concurs.

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SCHWARTZ, Chief Judge.

Treating the only substantive point which merits discussion, we hold that the defendant’s act of pointing a pistol at the victim to secure acquiescence to his acts of simple battery by non-consensually touching her intimate areas, involved the “use” of a deadly weapon in the commission of the battery within the meaning of sub-subsection (l)(a)2 of the aggravated battery statute, § 784.045, Fla.Stat. (1989).¹ Gaston v. State, 672 S.W.2d 819, 821 (Tex. App.1983) (“Appellant here argues that since he did not physically move the gun, point it or threaten to shoot defendant, he did not ‘use’ the gun as the statute requires. We do not believe the word ‘use’ can be so narrowly construed. It was the presence of the gun in appellant’s hand that instilled fear in complainant and made her feel threatened with bodily injury. When appellant had one hand over complainant’s mouth, the other was holding the shotgun in very close proximity to complainant’s body. To say appellant did not ‘use’ the gun would be to totally negate it as a factor in the incident. That simply is not the case.”). Accord State v. Pruitt, 94 N.C.App. 261, 380 S.E.2d 383 (1989), review denied, 325 N.C. 435, 384 S.E.2d 545 (1989); May v. State, 660 S.W.2d 888 (Tex.App. 1983), aff’d, 722 S.W.2d 699 (Tex.Crim.App. 1984). See generally Lareau v. State, 573 So.2d 813 (Fla.1991). Hence, the aggravated battery conviction is affirmed.

As the parties agree, the guidelines score sheet should be amended to eliminate the twenty-four points which were erroneously assessed for victim injury. See Northcut v. State, 493 So.2d 85 (Fla. 4th DCA 1986). No remand for resentencing is required, however, because the recalculation does not affect the applicable cell. See Hayward v. State, 590 So.2d 976, 976 n. 3 (Fla. 5th DCA 1991); Sellers v. State, 578 So.2d 339 (Fla. 1st DCA 1991), approved, 586 So.2d 340 (Fla.1991).

There is no merit in the appellant’s remaining point.

Affirmed as modified.

BARKDULL, J., concurs.

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594 So. 2d 318, 1992 Fla. App. LEXIS 1027, 1992 WL 21892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-state-fladistctapp-1992.

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