Callaghan v. State, 84-927
| Decision Date | 19 December 1984 |
| Docket Number | No. 84-927,84-927 |
| Citation | 10 Fla. L. Weekly 8,462 So.2d 832 |
| Parties | 10 Fla. L. Weekly 8 Edward CALLAGHAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant, Edward Callaghan, was charged with two counts of attempted murder of his wife and infant son with a firearm and one count of child abuse by unlawfully permitting the mental or physical health of the child to be materially endangered contrary to section 827.04(1), Florida Statutes (1983). The court directed a judgment of acquittal on the child abuse count and the jury found Callaghan guilty of the lesser included offense of shooting in a dwelling on the other two counts.
In his written sentencing order the trial judge stated that he found:
clear and convincing reasons to warrant aggravating the guideline sentence under category 8, 45 points; to-wit: "any nonstate prison sanction" to a sentence of five (5) years imprisonment:
1. Defendant's action, discharging a rifle in the same room occupied by Nicholas Callaghan, age 10 months, placed said child, an innocent bystander, in significant danger of loss of life or limb.
2. Defendant used a firearm during commission of this offense.
Callaghan contends on appeal that the court erred 1) in entering judgment of conviction for two counts of shooting into a dwelling when he only fired one shot and 2) in sentencing him in excess of the sentencing guidelines.
The evidence adduced in support of the attempted murder counts showed that Callaghan put a rifle to his wife's head while she was holding their small child and told her he was going to kill both of them on the count of three. Just before he reached three, the wife moved her head, the gun fired, and the bullet missed the intended victims. The foregoing incident took place in the bedroom of the parties' residence. Callaghan denied that he intended to kill either victim, but he did admit firing the shot.
Even though Callaghan was found guilty on both counts of the lesser included offense of shooting in a dwelling, there can be only one adjudication of conviction. The episodic basis for the conviction was firing one shot in a dwelling. Had the state prevailed on its theory that Callaghan was guilty of attempting to murder both wife and child with the one shot the record would have sustained two attempted murder convictions. People v. Rothrock, 21 Cal.App.2d 116, 68 P.2d 364 (1937). But having been found guilty of only firing one...
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