Espinosa v. State, 85-1001
Decision Date | 28 October 1986 |
Docket Number | No. 85-1001,85-1001 |
Citation | 11 Fla. L. Weekly 2270,496 So.2d 236 |
Parties | 11 Fla. L. Weekly 2270 Roberto ESPINOSA, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Margaret S. Brodsky, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and BARKDULL and HUBBART, JJ.
Espinosa was indicted for first-degree murder and found guilty of the lesser offense of aggravated battery. The only appellate point he raises concerning the conviction claims error in the following instruction, given over objection:
It is the general law of this State that when the prosecution has produced evidence of the connection between the act complained of and the death, it is the duty of the defendant to come forward with evidence to show that death resulted from some other cause.
There is no doubt that this charge impermissibly shifts the burden of proof as to a vital element of a homicide charge, causation, from the prosecution and thus constitutes a violation of due process. Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39, 51 (1979); Francis v. Franklin, 471 U.S. 307, 318, 319, 105 S.Ct. 1965, 1973, 85 L.Ed.2d 344, 360 (1985). Because, however, the verdict reflects that the jury did not hold the defendant responsible for causing the victim's death, it is apparent that the charge in question had no effect on the result and was therefore entirely harmless. Hearn v. James, 677 F.2d 841 (11th Cir.1982) ( ); Richard v. State, 42 Fla. 528, 29 So. 413 (1900) ( ); Mathis v. State, 45 Fla. 46, 34 So. 287 (1903) ( ); Day v. State, 54 Fla. 25, 44 So. 715 (1907) ( ); § 59.041, Fla.Stat. (1985); § 924.33, Fla.Stat. (1985).
Turning to Espinosa's challenge to his sentence, we find that the trial judge departed upward from the guidelines for reasons which are each unjustified under the prevailing law. Williams v. State, 492 So.2d 1308 (1986); Hendrix v. State, 475 So.2d 1218 (Fla.1985); Echevarria v. State, 492 So.2d 1146 (Fla. 3d...
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Garcia v. State, 87-2543
...and maximum penalties for primary offense charged was harmless where jury convicted only on lesser-included offense); Espinosa v. State, 496 So.2d 236 (Fla. 3d DCA 1986) (error in instruction on burden of proving causation of death was harmless where jury convicted only on aggravated assaul......
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