Brady v. State
| Decision Date | 24 October 1997 |
| Docket Number | No. 96-1851,96-1851 |
| Citation | 700 So.2d 471 |
| Parties | Bill BRADY, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Dan D. Hallenberg, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
Bill Brady, Jr. attempted to murder Ricky Mack by firing a single bullet at him. The bullet missed Mack but struck Toya Harrell causing substantial injury to her hand. Brady was convicted of two counts of attempted murder. We affirm without comment the trial court's departure sentence. However, Brady's conviction for two counts of attempted murder for the firing of a single shot raises a new issue in Florida.
There appears to be no legitimate issue as to whether Brady has committed two separate offenses; the intriguing question is whether he has committed two attempted murder offenses. We have no trouble with the doctrine of transferred intent. Brady's general intent to shoot Mack is sufficient intent to sustain a conviction for injuring Harrell. But should that offense be attempted murder?
An "attempt" under Florida law requires proof of two elements: (1) an intent to commit the underlying crime and (2) some act toward the commission of such offense. Clearly the evidence is sufficient to sustain the conviction for the attempted murder of Mack. Brady intended to kill Mack and fired a shot at him to carry out that intent. If Brady's intent to shoot Mack is used to justify the conviction for the attempted murder of Mack, is there sufficient intent left over to transfer to justify the conviction relating to Harrell? The better answer seems to be yes. Intent (at least general intent) is not a commodity; it is a frame of mind. It is incapable of being "used up."
Although there are no Florida cases directly on point, two cases from California illustrate the problem. In People v. Chinchilla, 52 Cal.App.4th 683, 60 Cal.Rptr.2d 761 (1997), Chinchilla fired a single shot in the direction of officers Meisels and Silofau. On his appeal from his conviction for two counts of attempted murder, Chinchilla argued that the doctrine of transferred intent cannot support two attempted murder convictions when only one shot was fired. The court agreed with this general proposition, citing the earlier case of People v. Czahara, 203 Cal.App.3d 1468, 250 Cal.Rptr. 836, 840, (1988):
[W]here a single act is alleged to be an attempt on two persons' lives, the intent to kill should be evaluated independently as to each victim, and the jury should not be instructed to transfer intent from one to another.
The court in Chinchilla nevertheless upheld both convictions, holding that since one officer was kneeling behind the other, the jury could have found that Chinchilla intended to kill both with the single shot. Such is not an issue on this appeal.
In People v. Scott, 14 Cal.4th 544, 59 Cal.Rptr.2d 178, 182, 927 P.2d 288, 292, (1996), the California Supreme Court was concerned with the issue of whether the doctrine of transferred intent could be used to sustain a conviction for the murder (not the attempted murder) of an unintended victim when the defendant is also prosecuted for the attempted murder of the intended victim. The court had this to say:
Nor is application of the transferred intent doctrine under these circumstances foreclosed by the prosecutor having charged defe...
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State v. Brady
...Seventh Judicial Circuit, Daytona Beach, Florida, for Respondent. PER CURIAM. We have for review the decision in Brady v. State, 700 So.2d 471 (Fla. 5th DCA 1997), based on a certified question of great public CAN A DEFENDANT BE CONVICTED OF ATTEMPTED MURDER OF BOTH THE INTENDED VICTIM AND ......
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Bell v. State
...intent is not subject to transfer but rather such intent should be independently evaluated as to each victim." Brady v. State, 700 So.2d 471, 473 (Fla. 5th DCA 1997). As do we, the Fifth District found the decisions in People v. Chinchilla, 52 Cal.App.4th 683, 60 Cal.Rptr.2d 761, 765 (1997)......
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Frederick v. State
...transfer but rather such intent should be independently evaluated as to each victim.” Bell, 768 So.2d at 28 (quoting Brady v. State, 700 So.2d 471, 473 (Fla. 5th DCA 1997)). Frederick's reliance on Bell is misplaced because, in Bell, the defendant was charged with the attempted first-degree......
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Judicial Exploitation of Mens Rea Confusion, at Common Law and Under the Model Penal Code
...in Brady, the Florida Supreme Court avoided using the transferred intent analysis on which the lower courts relied. See Brady v. State, 700 So. 2d 471 (Fla. Dist. Ct. App. 1997), quashed in part, 745 So. 2d 954 (Fla. 1999). A further complication is that the prosecution was for attempted mu......