final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case No.
Haughwout, Public Defender, and Zainabu Rumala, Nora Gay, and
Erika Follmer, Assistant Public Defenders, West Palm Beach,
Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
appeal, appellant claims the trial court erred in (1)
excluding a character witness from appellant's workplace,
(2) not instructing the jury on justifiable use of deadly
force, (3) denying a motion for downward departure, and (4)
imposing drug offender probation. We affirm the first two
issues. As to the third issue, which raised two grounds for
departure, we reverse as to one ground and remand for
resentencing, and we affirm as to the other ground. Finally,
we reverse the last issue with directions.
and the victim were at a bar when appellant confronted the
victim about an incident involving appellant's
girlfriend. Appellant became belligerent, threatened the
victim, and cursed at him. The victim moved to the other end
of the bar. Appellant walked past the victim two times and
pushed him both times. Appellant then left the bar.
victim stayed in the bar for another thirty or forty-five
minutes before leaving. As he walked towards his car,
appellant accosted the victim and punched him in the face.
Appellant repeatedly punched the victim, causing him to fall,
and continued to punch the victim while he was on the ground.
The victim begged appellant to stop. The victim never threw a
punch and did not do anything except try to stop the attack.
After appellant left, the victim managed to drag himself back
into the bar. The victim was taken by ambulance to the
hospital. As a result of the attack, the victim sustained
fractured orbital sockets, torn cartilage on three ribs, and
a broken tooth, and was beaten so badly that blood came out
of his ears.
testified in his defense that the victim struck him in the
face without provocation, causing appellant to fall.
Appellant and the victim rolled around on the ground, and
appellant hit the victim "a couple of times."
defense attempted to present testimony of a character witness
from appellant's work who would testify to
appellant's reputation for peacefulness in the community.
The state argued the witness did not meet the foundation for
reputation testimony because the witness knew appellant only
in the workplace and did not know appellant's general
reputation in the community. The trial court agreed and
excluded the testimony as not sufficiently broad-based.
trial court instructed the jury on the defense of the
justified use of non-deadly force. The jury found appellant
guilty as charged of aggravated battery.
moved for a downward departure sentence on the ground that
the offense was committed in an unsophisticated manner and
was an isolated incident for which he had shown remorse. The
trial court found that the offense was an isolated incident
and that appellant was remorseful. However, the court found
that the victim's injuries demonstrated that this was not
an unsophisticated crime. Specifically, the court stated:
However, I wanted to look at these pictures again, because
these pictures clearly demonstrate - they are in evidence -
that this ...