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Parague v. State

Florida Court of Appeals, Fourth District

June 7, 2017

BARRINGTON PARAGUE, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John Patrick Contini, Judge; L.T. Case No. 11-8266 CF10A.

          David L. Luck, Marissel Descalzo and Mariko Shitama Outman of Carlton Fields Jorden Burt, P.A., Miami, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

          KLINGENSMITH, J.

         Appellant Barrington Parague appeals his convictions of aggravated assault with a deadly weapon and felony battery, as well as his sentence and the accompanying order to pay $30, 000 to the victim in restitution. Although we affirm his conviction without further comment, we find the restitution order was the product of improper coercion by the trial court and reverse that portion of the sentence.

         Appellant's charges stemmed from an incident that began with a verbal altercation between appellant and victim at appellant's place of work. What led to the altercation was a matter of dispute. What was undisputed is that during the episode appellant swung a machete toward the victim, slapping him across the chest with the flat side of the blade. The victim testified that this strike caused a bruise on his chest. Then, at some point during the altercation, a third party (appellant's employee) grabbed the victim from behind and slammed him to the ground, causing a dislocation of the victim's shoulder.

         After appellant was convicted of the charges, the court conducted a sentencing hearing where restitution was discussed. The victim agreed that his shoulder was dislocated when the third party threw him to the ground. Consequently, he lost his labor-intensive job and had not been able to work there since. He received four months of physical therapy that totaled $5, 000 to $6, 000, and although he never found out how much shoulder surgery would cost, he could not afford it regardless.

         At this point, the State interjected and explained that restitution relating to the shoulder injury was unavailable because it was not caused by appellant:

[THE STATE]: There's a little bit of a restitution issue in this case, I guess. Unfortunately, for the victim the injuries really were caused by him being thrown to the ground.
[DEFENSE COUNSEL]: Not by [appellant].
THE COURT: I understand.
[THE STATE]: So, that's an additional cost that typically a victim would have - at least they could get monetary compensation and be made whole, and that is not available to the victim in this case and that is causing him to have stronger feelings perhaps about the potential punishment in the case.

         After several witnesses spoke on behalf of appellant to attest to his character and family obligations, and before appellant spoke on his own behalf, the court issued the following warning that was clearly intended to convey the message that anything less than a full acceptance of responsibility could increase the likelihood that appellant would be imprisoned:

But I don't want to hear anything remotely - and I'm giving you a warning. I could have been the kind of guy to sit here and lying in wait, wait to make a huge mistake, and run his mouth like some of these authors of these letters about how "I was defending myself."
If he did that, I'm telling you straight up, he is gone, off to see the wizard.
What I'd like to hear - I don't know that. I would like to hear someone with a happy, happy, spirit, urge the Court to, please, let him remain free so he can pay $30, 000 over time to this victim for losing his job, for the surgery that he is going to need, for the $6, 000 he is out already.
The surgery is going to be at least another $10, 000, and instead of staying free so he can pay financial bills for a daughter - no, if he ever stays free, it is not to pay her bills. It's to show remorse and to show contrition and to show extraordinary responsibility. If I heard things like that, I might be moved to believe a lot more of what I read in here.
If I don't hear anything like that, if I hear about what a generous man. I hear about a generous man who does for so many people, helps employees that otherwise would not be able to feed his families, I'm moved by that, if that's really who he is, but not for him ...

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