Hernandez Ramos v. State, 85-1966
| Decision Date | 17 September 1986 |
| Docket Number | No. 85-1966,85-1966 |
| Citation | 11 Fla. L. Weekly 2013,496 So.2d 837 |
| Parties | 11 Fla. L. Weekly 2013 Jose HERNANDEZ RAMOS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and A. Anne Owens, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Defendant appeals the denial of his motion for judgment of acquittal in his trial for second-degree murder. We reverse.
Defendant was charged with second-degree murder and was tried by a jury. Following the close of the state's case, the defense moved for a judgment of acquittal, which was denied. At the end of all the trial testimony, the motion was renewed and again denied. Defendant was found guilty of manslaughter.
On appeal defendant argues that the trial court erred in not granting his motion for judgment of acquittal because the state presented no evidence rebutting defendant's case of self-defense and, therefore, failed to establish a prima facie case of nonjustifiable homicide. We agree with defendant's argument.
The charge against defendant arose out of an incident in a bar during which defendant shot the victim, resulting in the victim's death. Defendant's testimony, briefly stated, was that the victim began the fight by hitting him, that defendant did not want to fight and tried to leave but was prevented from doing so by the victim's friends, and that defendant shot the victim only after the victim pulled a knife from his pocket during the struggle between the two men.
The incident occurred in a crowded and busy bar. Most of the state's witnesses had their attention drawn to the fight by the sound of the gunshots fired by defendant. Thus, those witnesses were not able to testify about anything leading up to the fight or the beginning of the fight.
The testimony of one of the state's witnesses, a former girlfriend of the defendant who had been sitting at a table with defendant immediately prior to the fight, corroborated defendant's account of the incident, i.e., that the victim initiated the fight by hitting defendant and that defendant was prevented from leaving by friends of the victim.
None of the state's witnesses could testify whether the victim had a knife, only that the witnesses did not see a knife. The witnesses were apparently not in close proximity to the fight. At least one of the...
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Sloss v. State
...case of self-defense, the state must overcome the defense by rebuttal, or by inference in its case in chief."); Hernandez Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986) ("The state has the burden of proving guilt beyond a reasonable doubt, which includes proving beyond a reasonable d......
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Soberon v. State, 88-1165
...equal right to be there. Id. at 1059 (citation omitted).3 The cases relied on by appellant are inapposite. See Hernandez Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986) (victim initiated fight; defendant tried to leave but was prevented from doing so by victim's friends); Brown v. Sta......
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Jenkins v. State
...had backed up and brandished a gun at the aggressor, but the aggressor continued to approach until the defendant shot him. In Hernandez Ramos, 496 So.2d 837, we reversed a conviction for manslaughter when the defendant testified he was attacked at a bar and tried to leave, but friends of th......
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Thompson v. State
...justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him...." See also Ramos v. State, 496 So.2d 837 (Fla. 2d DCA 1986); Fla.Std.Jury Instr. (Crim.) 3.04(d). There is a duty to retreat in the face of a felonious attack before using deadly for......