State v. Alexander, 80-1439.

• Decision Date: 23 December 1981
• Docket Number: No. 80-1439.,80-1439.
• Parties: STATE of Florida, Appellant, v. William Mitchell ALEXANDER, Appellee.
• Court: Florida District Court of Appeals

406 So.2d 1192

STATE of Florida, Appellant, v. William Mitchell ALEXANDER, Appellee.

No. 80-1439.

District Court of Appeal of Florida, Fourth District.

November 18, 1981.

Rehearing Denied December 23, 1981.

Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellant.

H. Dohn Williams, Jr., Hollywood, for appellee.

MOORE, Judge.

The state appeals the trial court's dismissal of a first degree murder indictment against the appellee, William Mitchell Alexander. We agree that the trial court impermissibly determined the issue of premeditation and reverse.

The appellee was indicted for first degree murder. Pursuant to Fla.R.Crim.P. 3.190(c)(4) the appellee moved to dismiss the charges against him claiming that the death was actually the result of an accident. In support of his motion to dismiss the appellee filed an affidavit which stated:

On the evening of April 1, 1980, I was informed by Betty DeClue's son, Toby, that he had received a threatening telephone call while Betty and I were away from the house. Toby said the caller threatened to come to the house and kill Betty and me. Toby was extremely upset and it took quite awhile to calm him down. He told us that he was so afraid that after getting the call he left the house and did not return until Betty and I came home.

Prior to the shooting of Glenn Richert, I was aware of Richert's reputation for violence. I considered him to be a violent person.

Early in the morning of April 2, 1980, Betty came to my bedroom. She was upset and said that Richert had barged into the house and was ranting and raving about money and about being ripped off. She said she was scared and ask (sic) me to go out and talk with him.

I went to the livingroom. Richert appeared to be drunk and high on drugs. He kept stating that he wanted his money, that he was tired of getting ripped off, and that someone was going to get hurt if he did not get his money. I tried to calm him down. I told he (sic) to sit down we would talk.

He sat on the couch in the livingroom still ranting and raving. At that time I saw that he had a small caliber gun in his hand. He said that someone was going to get hurt if he did not get his money.

I had previously placed a .38 cal. pistol under a cushion on the couch within inches of where Richert sat. I was afraid for Betty's, Toby's, and my safety because he was armed, angry, was making threatening remarks, and was drunk and/or high on drugs.

I moved toward the coffee table as if to get some cigarettes with the intent of getting the gun under the cushion, I obtained the gun, and Richert saw it as it was being pulled from under the cushion. He immediately grabbed the gun. When he grabbed the gun and attempted to take it from my hand, it discharged. It happened so quickly I do not know whether the gun was cocked or uncocked.

I did not intend to shoot Glenn Richert. I was merely attempting to arm myself because he had come into my residence armed, he was angry, he was acting irrationally, and I was concerned about his threats.

Within moments of the shot, I checked Glenn Richert to see where he had been shot in an attempt to aid him. I checked for vital signs and found no pulse or breathing. Feeling that he was dead, I became afraid and did not call for emergency help and/or the police. I was afraid that because I was on probation for possession of marijuana that my probation would be revoked and I would be sent to prison.

Knowing he was dead, a decision was made to dispose of the body. Betty and I moved the body to the kitchen in order that Toby would not see it when he left for school.

The

...