Fleshman v. StateFleshman v. State
Lead Opinion
In this unfortunate family dispute, Fleshman struck her seventy-nine year old mother. She was convicted of battery on a person at least sixty-five years old. The court, because it found that Fleshman “talked about her mother like a person talks about a dog,” entered an upward departure sentence. This was an invalid grounds for departure. When the defense objected that the court had stated no sufficient reason to depart, the court, resorting to the statute book, then found that defendant had “indicated behavior which is of a dangerous nature with respect to the crime. Additionally ... I find the victim suffered an extraordinary or emotional trauma and permanent physical injury and was treated with particular cruelty.” No further objection was made by defense. On appeal, Fleshman argues that the evidence does not support the grounds for departure found by the trial court.
We must first decide whether the issue is preserved. It might be argued that by not again objecting to the sentence after the court revised its reasons for departure, Fleshman failed to properly preserve the issue. We think otherwise. Fleshman raised the issue by objecting to the departure sentence. The defense objection was well taken. When the court resorted to tracking the statute in order to assure that it stated proper reasons for departure, it was evident that the court intended to depart and that any further objection would be futile. Hicks v. State,
The evidence indicated that Flesh-man struck her mother several times on her face and head with her hands. The mother suffered a black eye and a red ring around the other eye. This is not evidence of “exceptional cruelty;” it is the normal consequence of the charged battery. And any emotional trauma suffered by the mother in this case does not rise to the level required by State v. Rousseau,
Further, there was no testimony relating to a “permanent physical injury.” Even though the mother later discovered a broken rib, nothing in the testimony relates this condition to the battery (the
Although we agree with the trial judge’s abhorrence of Fleshman’s treatment of her mother, her conduct is appropriately dealt with by the sentencing guidelines relating to the offense at conviction. No departure grounds were established by this record.
REVERSED and REMANDED for re-sentencing with the guidelines.
Dissenting Opinion
dissenting.
I respectfully dissent because I do not think the alleged sentencing error was preserved for appeal by timely objection. See § 924.051(3), Fla. Stat. (1997).