Moakley v. State, 88-1244
| Decision Date | 03 August 1989 |
| Docket Number | No. 88-1244,88-1244 |
| Citation | 14 Fla. L. Weekly 1838,547 So.2d 1246 |
| Parties | 14 Fla. L. Weekly 1838 Michael John MOAKLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Glen P. Gifford, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Paula C. Coffman, Asst. Atty. Gen., Daytona Beach, for appellee.
This is an appeal from a judgment in an aggravated child abuse case. The jury determined that appellant committed this offense by malicious punishment of his eight-year-old daughter after the trial court denied his motion for judgment of acquittal. See § 827.03(1)(c), Fla.Stat. (1987). 1 In denying the motion the trial judge was explicit in his concern for the vagueness of the statute. He declared it was a question which needed to be decided on appeal and said "... it's not something that I should do here ..." Given that there was no direct constitutional challenge as to vagueness or overbreadth we agree the trial judge was in a difficult position to try to define in more exact terms what it takes to violate a statute which proscribes conduct in such nonobjective wording.
The incident for which appellant stood trial centered around an incident in the home where appellant struck his daughter on the buttocks and right hip with the leather portion of his belt. The question on appeal is whether the striking of the child was done in a manner violative of the statute. The statute proscribes malicious punishment, among other acts not pertinent in this case.
The facts reveal that appellant called the Department of Health & Rehabilitative Services to report that his daughter was ungovernable and to request that she be removed from the home. The counselor suggested that he contact his mental health counselor for help and that he control his daughter by withdrawing privileges. A short time later an H.R.S. counselor responded to a complaint from the child abuse registry involving appellant. The counselor went to the home and found the child standing next to the wall; she was crying and her pants were wet. Upon examining her he found bruise marks on her buttocks and right hip. Appellant told the counselor that he had spanked his daughter with a leather belt because of a behavior problem. He asked the counselor to take the child from the home. As the child left with the counselor, appellant told her that he loved her and that he wanted her to leave so that he would not hurt her.
Case law in this area of the law is sparse but the precise question is one concerning when the boundary between permissible punishment or discipline is crossed and the area of maliciousness is entered. In Kama v. State, 507 So.2d 154, 156 (Fla. 1st DCA 1987), the court found that parental discipline exceeds permissible limits when it is "motivated by malice" "inflicted upon frivolous pretenses," "excessive, cruel or merciless" or has caused " 'great bodily harm, permanent disability, or permanent disfigurement.' " In State v. Gaylord, 356 So.2d 313, 314 (Fla.1978), the supreme court defined malice as used in the context of the aggravated child abuse statute to mean "ill will, hatred, spite or an evil intent." This state of mind is also required to convict a defendant of depraved-mind second-degree murder. See Ellison v. State, 547 So.2d 1003 (Fla. 1st DCA 1989). In Ellison, the court found no...
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State v. Wilder
...parental control and violations of criminal law. See Lowery v. State, 641 So.2d 489 (Fla. Dist.Ct.App.1994); Moakley v. State, 547 So.2d 1246 (Fla.Dist.Ct.App.1989). Both addressed a child abuse statute imposing criminal liability on one who "maliciously punishes a child." Fla. Stat. Ann. §......
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Adams v. State, 5D00-1685.
...been consistently employed in aggravated child abuse cases. E.g., Freeze v. State, 553 So.2d 750 (Fla. 2d DCA 1989); Moakley v. State, 547 So.2d 1246 (Fla. 5th DCA 1989). Notwithstanding the definition adopted in Gaylord, however, without explanation, the standard jury instruction on aggrav......
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Raford v. State
...corporal punishment and prohibited child abuse. See, e.g., McDonald, 785 So.2d at 647; Corsen, 784 So.2d at 536; Moakley v. State, 547 So.2d 1246, 1247 (Fla. 5th DCA 1989); cf. S.L. v. Dep't of Children & Families, 787 So.2d 973, 974 (Fla. 5th DCA 2001) (recognizing in dependency case the "......
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Freeze v. State, 87-02576
...Kenny. The dividing line between permissible punishment and malicious punishment is not always easy to draw. See Moakley v. State, 547 So.2d 1246 (Fla. 5th DCA 1989) (striking daughter with leather belt on buttocks and hip is not malicious punishment); Toronto v. State, 525 So.2d 932 (Fla. ......
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Emergencies and case management conference
...even if the abuse does not cause great bodily harm, permanent disability or permanent disfigurement to the child. [ Moakley v. State, 547 So. 2d 1246 (Fla. 5th DCA 1989) (striking of child with leather belt is not malicious punishment in absence of evidence of malice or that actions of defe......