Barkley v. State, 90-3121
| Citation | 585 So.2d 418 |
| Decision Date | 30 August 1991 |
| Docket Number | No. 90-3121,90-3121 |
| Court | Florida District Court of Appeals |
| Parties | Reginald D. BARKLEY, Appellant, v. STATE of Florida, Appellee. 585 So.2d 418, 16 Fla. L. Week. D2310 |
Steven L. Seliger, Quincy, for appellant.
Robert A. Butterworth, Atty. Gen., and Virlindia Doss, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal from an order imposing restitution in a criminal case. Barkley contends that the trial court unlawfully imposed this restitution as punishment for conduct of which he was found not guilty. We agree and reverse for the following reasons.
Barkley was charged by information with second-degree murder with a firearm, tampering with or fabricating physical evidence, and carrying a concealed weapon. After a three-day trial, the jury found him guilty of the lesser included offense of culpable negligence (as to the murder charge) and guilty of carrying a concealed firearm. The jury could not reach a verdict on the tampering charge. Judgment of conviction was entered in accordance with the jury verdict, and Barkley was sentenced to 11 months, 29 days on the culpable negligence charge and 5 years' probation on the carrying a concealed firearm charge. Barkley was also ordered to pay restitution to the victim's family in the amount of $3,500 to cover the cost of the funeral expenses as additional punishment pursuant to the culpable negligence charge.
Barkley was charged with the shooting death of Tiffany Lawson. Lawson's death occurred when several shots were fired in a crowd, and it was undisputed that Barkley had a gun and shot the gun during the episode in which Lawson was killed. 1 The question for the jury was whether Barkley's gunshot or some other gunshot killed Lawson. Accordingly, the jury was instructed on second degree murder with a firearm, manslaughter with a firearm, and culpable negligence. The murder and manslaughter instructions included as an essential element that Lawson's death was caused by Barkley. The manslaughter instruction also included as an element that "the death was caused by the act of the defendant, or the culpable negligence of the defendant, Reginald Barkley." The culpable negligence instruction, however, contained just two elements:
One, the defendant, Reginald Barkley, exposed Tiffany Lawson to personal injury, or inflicted actual personal injury on her.
Two, he did so through culpable negligence. Actual injury is not required.
It is obvious, therefore, that to find Barkley guilty of second degree murder or manslaughter through culpable negligence, the jury had to find that his shot caused Lawson's death. On the other hand, if the jury was unable to find that it was Barkley's shot that killed Lawson, they could still find Barkley guilty of culpable negligence by exposing Lawson to danger from the gunshot.
It is obvious from the verdict that the jury did not find Barkley's shot killed Tiffany Lawson, and as a consequence the jury found him guilty only of culpable negligence by firing his gun in a manner that exposed Lawson to personal injury. Had the jury found that Barkley's shot killed Lawson and that he was culpably negligent, it would have been required to find him...
To continue reading
Request your trial
-
Carter v. State, 92-4159
...2d DCA 1994); Jackson v. State, 634 So.2d 1102 (Fla. 4th DCA 1994); Burke v. State, 596 So.2d 484 (Fla. 4th DCA 1992); Barkley v. State, 585 So.2d 418 (Fla. 1st DCA 1991); Johnson v. State, 547 So.2d 300 (Fla. 3d DCA 1989); Simmons v. State, 484 So.2d 104 (Fla. 4th DCA 1986); Bass v. State,......
-
Robinson v. State, 94-3177
...however, that the trial court erred in ordering him to pay restitution on a severed count on which he was acquitted. Barkley v. State, 585 So.2d 418 (Fla. 1st DCA 1991). Therefore, we reverse and remand with directions to the trial court to vacate that part of the restitution order requirin......
-
Carter v. State, 93-1849
...2d DCA 1994); Jackson v. State, 634 So.2d 1102 (Fla. 4th DCA 1994); Burke v. State, 596 So.2d 484 (Fla. 4th DCA 1992); Barkley v. State, 585 So.2d 418 (Fla. 1st DCA 1991); Johnson v. State, 547 So.2d 300 (Fla. 3d DCA 1989); Simmons v. State, 484 So.2d 104 (Fla. 4th DCA 1986); Bass v. State,......
-
Powell v. State
...1st DCA), review dismissed, 562 So.2d 347 (Fla.1990); O'Conner v. State, 587 So.2d 596 (Fla. 2d DCA 1991). See also Barkley v. State, 585 So.2d 418 (Fla. 1st DCA 1991); Smith v. State, 590 So.2d 1112 (Fla. 2d DCA In Ahnen v. State, 565 So.2d 855 (Fla. 2d DCA 1990), in circumstances similar ......