Summary
concluding the defendant's indecisiveness about whether to testify did not require the court to conduct a second competency evaluation
Summary of this case from Peoples v. StateOpinion
No. 94-3508.
October 5, 1995.
Appeal from the Circuit Court, Duval County, Aaron Bowden, J.
Nancy A. Daniels, Public Defender; Terry Carley, Assistant Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General; Amelia L. Beisner, Assistant Attorney General, Tallahassee, for appellee.
This is an appeal from a final judgment and sentence rendered after appellant was found guilty by a jury of first-degree arson. Appellant asserts that (1) the trial court improperly departed from the sentencing guidelines; (2) the trial court abused its discretion in failing to conduct an additional competency examination when appellant was indecisive about testifying, and (3) the trial court erred in requiring appellant to pay restitution to the victim where said requirement was not orally pronounced and the state indicated at the hearing that no further money was owed to the victim.
We find that creating a substantial risk of harm to five children who resided in the home where appellant started the fire is not inherent in the crime of first-degree arson and constitutes a valid reason for imposing a departure sentence. § 921.0016(3)(e), Fla. Stat. (1993). We find that the trial court did not abuse its discretion in failing to conduct a second competency determination. As to the third issue, the state properly concedes error. We, therefore, strike that portion of the sentence awarding the victim $473 for restitution. In all other respects, the judgment and sentence are affirmed.
WEBSTER and VAN NORTWICK, JJ., concur.