Rodriguez v. State, 79-458
| Decision Date | 15 January 1980 |
| Docket Number | No. 79-458,79-458 |
| Citation | 379 So.2d 657 |
| Parties | Cosme RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bierman, Sonnett, Beiley & Shohat and Lawrence E. Besser, Miami, for appellant.
Jim Smith, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before HENDRY, BARKDULL and SCHWARTZ, JJ.
Appellant, defendant in the trial court, seeks review of his conviction and sentence to ten years in the State penitentiary plus ten years probation, entered by the trial court pursuant to a jury verdict which found the appellant guilty of second degree murder.
The appellant alleges two points by this appeal: (1) that the trial court erred in denying the appellant's motions for judgment of acquittal; (2) that the trial court improperly instructed the jury on the applicable law. We find both points to be without merit.
A motion for judgment of acquittal in a criminal case on the grounds of insufficient evidence to support the conviction admits all facts in evidence and every reasonable conclusion inferable therefrom favorable to the State. Weldon v. State, 287 So.2d 133 (Fla. 3d DCA 1973); Spinkellink v. State, 313 So.2d 666 (Fla.1975); Leath v. State, 333 So.2d 122 (Fla. 1st DCA 1976). In that posture, the facts in the instant case reveal the following:
On Sunday evening, July 3, 1977, the deceased and his girl friend went to visit some friends who were staying in that section of the Castaways Motel located on the east side of Collins Avenue, on the ocean, in the unincorporated area of Miami Beach. At approximately 2:00 A.M., July 4, the decedent, his girl friend, and another boy and girl had left a friend's room and were walking on the sidewalk in front of the Castaways, when they met the defendant and a couple of his friends. The defendant, or one of his friends, made a comment directed to the deceased's girl friend and the deceased started fighting with one of the defendant's friends. At this point, the defendant picked up a two-by-six about three feet long that was used to block the wheels of a boat trailer parked on the street. The two-by-six was solid, having no cracks, rot or any other defect. A crowd had assembled by that time and someone suggested the fight be a fair one. The defendant then dropped the board. The decedent and the boy he was fighting with headed toward the beach to continue the fight (the crowd followed). They crossed the parking lot and, just before they crossed the fence to go down to the beach, the decedent's girl friend noticed the defendant had picked up the board and was carrying it with him to the beach. She told him not to hit her boy friend with the board and he threatened to hit her first. The party proceeded across the beach to the water's edge, where the fight resumed. At first, the deceased was losing the fight but he got the upper hand and was sitting on the other boy, striking him in the head, when the defendant came running across the sand toward the deceased brandishing the board like a baseball bat. While in full stride, he swung the board with such force that upon hitting the...
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