
    STATE OF FLORIDA v JOSEPH
    Case No. 85-29542
    Eleventh Judicial Circuit, Dade County
    April 2, 1987
    APPEARANCES OF COUNSEL
    Scott Sakin, Assistant State Attorney, for plaintiff.
    Robert Zeija, for defendant.
   OPINION OF THE COURT

MARGARITA ESQUIROZ, Circuit Judge.

REASONS FOR AGGRAVATION OF SENTENCE AND DEPARTURE FROM GUIDELINES PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.701(d)(ll)

The Court, having heard from witnesses during a Probation Violation Hearing and after hearing argument from counsel, hereby relies on the following reasons for departing from the guideline sentence in aggravation. The Court finds the foregoing reasons are clear and convincing reasons to justify aggravation:

1. On January 24, 1986, the defendant was placed on eighteen (18) months probation in this case.

2. On August 6, 1986, the defendant committed acts which have caused his probation to be violated.

3. At the probation violation hearing, the Court found that the evidence satisfied the conscience of the Court by the applicable standard of proof that the defendant had violated the terms and conditions of his probation in that on August 6, 1986, the defendant, along with another man, shot Jonathan Wyche four (4) times with a firearm. Mr. Wyche was hospitalized for two (2) weeks; had to convalesce at his home for five (5) months and incurred hospital bills totalling in excess of twenty thousand dollars ($20,000.00). Mr. Wyche’s injuries were painful and he still suffers discomfort. During the shooting, one Craig Flanders was also shot and was killed.

4. The defendant, in clear violation of his probation, used a firearm in the commission of the shooting which resulted in the killing and attempted killing of the victim, acts which form the basis for the violation of probation. It was established through the evidence at the hearing that the defendant along with another man followed two (2) unarmed and completely innocent persons, and upon finding them, engaged in shooting in excess of twenty (20) rounds at Craig Flanders and Jonathan Wyche. One of the firearms was consistent with a Mac-10. A Mac-10 is an automatic firearm designed for combat.

5. The defendant had only been on probation for six and one-half (6V2) months before violating the terms and conditions of his probation.

6. The violations are not minor infractions by a probationer, but the basis for the violation were violent acts culminating in serious injury to one person and death to another person.

7. Based upon the evidence presented at the hearing, the Court has revoked probation and imposes upon the defendant in this case a sentence of five (5) years incarceration on Count I and a consecutive five (5) year term on Count II, for a total of ten (10) years incarceration in the state penitentiary.

DONE AND ORDERED at Miami, Dade County, Florida, on this the 2nd day of April, 1987.  