04-1654 VILLANUEVA V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 04-1654 VILLANUEVA V. STATE

Case Date: 12/28/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2005

SANTIAGO VILLANUEVA, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 02-30113 CASE NO. 3D04-1654

Opinion filed December 28, 2005. An Appeal from the Circuit Court for Miami-Dade County, Ivan Fernandez, Judge. Bennett H. Brummer, Public Defender, and Todd G. Scher, Special Assistant Public Defender, for appellant. Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.

Before LEVY, SHEPHERD, and ROTHENBERG, JJ. ROTHENBERG, Judge. The attempted defendant, second Santiago Villanueva, with a was found guilty While of the

degree

murder

firearm.

firearm

was

discharged,

the

jury

concluded

that

it

was

not

discharged during the commission of the crime. judgment and sentence, but remand for the

We affirm the of a

correction

scrivener's error. The evidence is as follows. Gilberto Guajardo ("victim")

testified that when he saw the defendant at a restaurant, he approached him and began to shake the defendant's hand, but let go when the defendant began to yank on his hand. The victim

then called the defendant a few names, left the restaurant, and went to a bar. A few minutes later, the defendant walked into

the bar and asked the victim to go outside, but the victim refused. When the victim went to the bathroom, the defendant The

followed him, pointed a gun at him, and called him a name.

victim began walking towards the defendant and told him, "If you pull the trigger, make sure you kill me. I'm going to do something to you." If you leave me alive,

When asked by the prosecutor

why he walked towards the defendant, the victim stated, "Because he

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