State v. Bailey, 4-86-1994
| Decision Date | 27 May 1987 |
| Docket Number | No. 4-86-1994,4-86-1994 |
| Citation | 508 So.2d 1268,12 Fla. L. Weekly 1339 |
| Parties | 12 Fla. L. Weekly 1339 STATE of Florida, Appellant, v. Garth BAILEY, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Robert S. Jaegers, Asst. Atty. Gen., West Palm Beach, for appellant.
Carl H. Lida of the Law Offices of Carl H. Lida, P.A., Miami, for appellee.
This is a timely appeal of a final order granting appellee's motion to dismiss a charge of manslaughter. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(A). We reverse.
The facts presented at the motion to dismiss indicate that appellee, Garth Bailey, was sitting in a chair close to the victim, Mary Lou Young, as she cooked breakfast. Appellee stated he was showing the victim his gun when it accidentally went off. The victim was killed by a bullet wound to her head. There is no evidence of animosity between appellee and the victim and there were no signs of a struggle. There were no eyewitnesses to the incident other than appellant. The muzzle of the weapon, a 9 mm Smith and Wesson with an oversized 20 round clip, was three to six inches from the victim's head when it was discharged. The bullet went through the victim's right ear, exiting on the left side of her head. The gun was nearly new and there was no contention that it was not operating properly. Appellee's attorney conceded that appellee pulled the trigger of the gun.
As a result of this incident, appellee was charged with manslaughter. Appellee filed a motion to dismiss the charge, arguing there was an insufficient showing of culpable negligence as a matter of law. The trial judge stated that although he personally believed there was a showing of culpable negligence, he felt this court's decision in Getsie v. State, 193 So.2d 679 (Fla. 4th DCA 1966), was controlling and compelled him to grant the motion.
We find it unnecessary to address the correctness of Getsie at this time, as the posture of the present case is so clearly different from that of Getsie. In Getsie, after conclusion of a jury trial, this court found that as a matter of law, the evidence presented was not sufficient for a jury to conclude that the defendant was guilty of culpable negligence. The present case is an appeal of the trial court's action on a pretrial motion to dismiss. At this stage, it is only necessary that the facts alleged by the state, viewing all...
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