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Aggravated Assault with a Deadly Weapon in Florida

Victim statements can affect sentencing in a Miami aggravated assault case. In a recent appellate decision, the defendant pled no contest to aggravated assault and then appealed from the sentence. The defendant argued that the lower court had made a mistake in accepting the victim’s unsworn statement at sentencing, thereby violating section 921.143(1) of Florida Statutes.

The appellate court affirmed, explaining that the defendant hadn’t preserved his argument for review and there had been no fundamental error.

At the sentencing hearing, the victim wasn’t emotionally able to verbally speak to the court. Accordingly, the prosecutor offered an unsworn statement and other documents. The defense attorney responded by saying he wanted to cross-examine but didn’t object to most of the documents. The court asked the defense attorney whether it should review the prosecutor’s documents, including the unsworn statement, and the defense attorney told the judge to go ahead and review.

The victim requested that the prosecutor read his statement, which talked about his injuries, reduced quality of life and challenging recovery, into the record. His statement explained he’d been bedridden for months and couldn’t eat without pain.

The victim’s wife was called to read her own unsworn statement, and the defense attorney didn’t object. The unsworn statement talked about what happened after the attack and the deterioration of the victim. The defense attorney cross-examined the victim’s wife who admitted to a neck injury prior to the assault. She explained that the victim’s preexisting injury had been aggravated by the assault.

The defense attorney argued that the defendant couldn’t be blamed for the victim’s medical problems since he had pre-existing injuries. He also argued that the defendant would be willing to complete probation. The prosecutor asked for the maximum sentence, which was five years of incarceration. The lower court accepted the defense attorney’s argument that the victim suffered a pre-existing neck injury. It found the defendant had assumed the risk of the victim’s condition during the attack and sentenced the defendant to three years incarcerated with credit for time served. The court’s goal with the sentence with to protect the victim from having to go through any other contact with the defendant.

On appeal, the defendant argued that the judge had made a mistake in accepting the unsworn statement at sentencing. He argued that this violated Florida Statutes section 921.143(1). That law stated that at the sentencing hearing and before a sentence was imposed, the court should allow the victim of the crime for which the defendant was being sentenced to appear in order to make a statement or submit a sworn written statement that met certain criteria. The prosecutor argued that the defendant hadn’t objected to admitting the unsworn statement at sentencing, and the defense had agreed the lower court could review the statement even though he couldn’t cross-examine the victim.

The appellate court agreed that the defendant hadn’t preserved his argument for review. The specific legal ground for the objection had to be raised at trial, or it wouldn’t be heard on appeal. The defendant argued that it was a fundamental error for the lower court to accept the unsworn statement at sentencing. The appellate court disagreed.

It reasoned that under section 921.143(1)(a)-(b), a sentencing court is supposed to permit the victim of a crime to come before the sentencing court in order to make a statement under oath for the record and submit a written statement under oath to the state’s attorney office. The statute doesn’t speak about what a sentencing court should not permit. The appellate court reasoned that the law was written to create a certain group of victim impact statements the lower court would allow to be heard before sentencing. It found that accepting a victim’s unsworn statement didn’t necessarily rise to the level of fundamental error.

The defendant’s sentence was affirmed.

If you are charged with assault or aggravated assault in Miami, you should be aware that you may be sentenced to prison time. It is crucial to retain an experienced criminal defense attorney. Call The Hoffman Law Firm at (305) 928-1669, or contact us via our online form.

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