Ellison v. State, 88-3054

• Decision Date: 15 August 1989
• Docket Number: No. 88-3054,88-3054
• Citation: 547 So.2d 1003,14 Fla. L. Weekly 1916
• Parties: 14 Fla. L. Weekly 1916 Stanley B. ELLISON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1003

547 So.2d 1003

14 Fla. L. Weekly 1916

Stanley B. ELLISON, Appellant, v. STATE of Florida, Appellee.

No. 88-3054.

District Court of Appeal of Florida First District.

Aug. 15, 1989.

Louis O. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellant.

Robert Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

The original opinion is withdrawn and the following opinion is substituted therefor.

Ellison has appealed a judgment and sentence for depraved-mind second-degree murder. We reverse, and remand with directions to enter judgment for manslaughter.

In May 1988, a gray Grand Am automobile was stolen from a Jacksonville mall. The following day, a police officer observed a gray Grand Am exceeding the speed limit and clocked the vehicle at 67 M.P.H. in a 35 M.P.H. zone. The officer commenced pursuit, and the car began weaving in and out of traffic at high speed, ramming through a blocked toll booth gate at an estimated speed of 65 M.P.H. The car then jumped the median onto a service road, accelerating to approximately 70 M.P.H. and, already fishtailing, entered a major thoroughfare. As it did so, the driver lost control, crossed the center line and struck another vehicle head on, fatally injuring a 16-month old baby who was a passenger in that vehicle. The baby died the next day, and Ellison was charged with depraved-mind second-degree murder, contrary to Section 782.04(2), Florida Statutes, and grand theft, contrary to Section 812.014(2)(c), Florida Statutes.

Ellison was tried by jury. At the close of the state's case, the defense moved for judgment of acquittal as to the second-degree murder charge. In order to prove that a defendant committed depraved-mind second degree murder, the state must show that the act: 1) was one a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, 2) was committed from ill will, hatred, spite or evil intent, and 3) itself indicated an indifference to human life. Marasa v. State, 394 So.2d 544, 545 (Fla. 5th DCA 1981), accord Law v. State, 502 So.2d 471, 472-73 (Fla. 1st DCA 1987). The defense argued that the state had not proven the second element, that is, that Ellison's act was committed out of any ill will, hatred, spite or evil intent. The trial court disagreed and the case proceeded to the jury, which returned a verdict of second-degree murder and grand theft. The latter conviction is not appealed herein, and is not affected by this opinion.

The case proceeded to sentencing, where a dispute occurred regarding the inclusion of 21 points on the guidelines scoresheet for "legal status at the time of offense." Rule 3.701(d)(6), Florida Rules of Criminal Procedure, provides:

Legal status at time of offense is defined as follows: Offenders on parole, probation, or community control; in custody serving a sentence; escapees; fugitives who have fled to avoid prosecution or who have failed to appear for a criminal judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.

At the time of the offense herein, Ellison was on "furlough status" after being committed to the Department of Health and Rehabilitative Services. See § 959.011(3), Fla.Stat. (1987); Fla.Admin. Code Rules 10H-1.003(6) and 10H-9, et seq. The defense contended that, because "furlough status" was not specifically enumerated in Rule 3.701(d)(6), points could not be added in this category. The state countered with unsupported argument that "furlough status" was the equivalent of adult "parole," and that points were therefore awardable. The court adopted the state's argument and allowed the inclusion of 21 additional points, resulting in an increase in the recommended sentencing range from 12-17 years incarceration to 17-22 years incarceration. Ellison was thereupon sentenced to 22 years incarceration for the second-degree murder conviction, and 5 years for grand theft, to run concurrently.

The grade or degree with which a homicidal act was committed is a question of fact dependent upon the circumstances of a case and is typically for resolution by the jury. Larsen v. State, 485 So.2d 1372, 1373 (Fla. 1st DCA 1986); Reimel v. State, 532 So.2d 16 (Fla. 5th DCA 1988). Both manslaughter and second-degree murder can be defined generally as homicides resulting from the criminal actions of an accused who had no premeditated design to kill. Each crime is committed when an unintended death occurs as a result of an act of the killer. However, there is a legal difference between the two crimes, and if the facts do not support a conviction, it is our duty to either reduce the conviction to its proper degree, or discharge the accused. Marasa, 394 So.2d at 545. There is no view of the facts herein from which the jury could properly conclude that the instant homicide constituted second-degree murder, in that there is no evidence that Ellison's actions were done "from ill will, hatred, spite, or an evil intent."

Second-degree murder convictions have consistently been affirmed when the unintended death resulted from intentional actions toward or directed at a particular victim out of ill will, spite or malice. See Gordon v. State, 457 So.2d 1095 (Fla. 5th DCA 1984) (defendant who caused accident while intoxicated deliberately ran over another driver who attempted to block defendant's flight from the scene); Larsen v. State, 485 So.2d 1372 (Fla. 1st DCA 1986) (defendant struck partially disabled wife during argument, causing her to fall and fracture her skull); Dellinger v. State, 495 So.2d 197 (Fla. 5th DCA 1986) (defendant picked up a gun and pointed it at his wife during an argument and pulled the trigger without knowing whether or not it was loaded); Hooker v. State, 497 So.2d 982 (Fla. 2d DCA 1986) (defendant shot into a trailer which he believed to be occupied by migrant workers after going on a "mission" to rid the community of such...