State v. Brady, 96-627
| Decision Date | 03 January 1997 |
| Docket Number | No. 96-627,96-627 |
| Citation | 685 So.2d 984 |
| Parties | 22 Fla. L. Weekly D119 STATE of Florida, Appellant, v. Billy Belefonte BRADY, Jr., Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente Assistant Attorney General, Daytona Beach, for Appellant.
James B. Gibson, Public Defender, and Dan D. Hallenberg, Assistant Public Defender, Daytona Beach, for Appellee.
The state appeals from an order rendered by the trial court, which dismissed the criminal charge of aggravated battery that had been refiled against Brady. The trial court believed precedent from this court 1 required dismissal because Brady had been convicted of attempted manslaughter, which was a non-existent crime. See Taylor v. State, 444 So.2d 931 (Fla.1983). We reverse.
In this case, Brady was initially charged with attempted murder of a law enforcement officer and possession of a firearm by a minor. These charges arose from an incident in which Brady fled a nightclub called the Visage, with an off-duty policeman in pursuit. Brady fired shots at the officer and the officer returned fire. Both were injured. The officer received three bullet wounds.
Among others, the defense requested a jury instruction on attempted manslaughter. The state acquiesced. The verdict form contained a laundry list of possible offenses for which Brady could have been convicted:
1. attempted first degree murder with a firearm of a law enforcement officer in the performance of his lawful duties
2. attempted first degree murder
3. attempted second degree murder
4. attempted manslaughter
5. aggravated battery with a firearm
6. aggravated battery with great bodily harm
7. aggravated assault
8. battery on a law enforcement officer
9. assault on a law enforcement officer
10. battery
11. assault
12. not guilty
The jury returned a guilty verdict of attempted manslaughter. It also made two special findings: 1) Brady carried a firearm; and 2) the officer was a law enforcement officer in the lawful performance of his duties.
The jury returned a general verdict of guilt on this charge. Regarding the attempted manslaughter charge, the jury was instructed that the state had to prove two elements beyond a reasonable doubt: 1) Brady intentionally attempted to cause the death of the officer; and 2) the attempted killing of the officer was caused by the culpable negligence of Brady. The jury returned a general verdict of guilt on this charge, based on that instruction.
Thereafter, the state and defense counsel determined that attempted manslaughter by culpable negligence is a non-existent crime. As a result, the trial court vacated the conviction and granted a new trial on the ground Brady had been convicted of a non-existent crime. Taylor v. State, 444 So.2d 931 (Fla.1983).
The state then filed an amended information charging Brady with three counts of aggravated battery with a firearm, based on the number of shots that actually struck the police officer. Later it reduced the information to one count. The defense argued Brady could not be retried on any charge arising out of the shooting episode which had been the focus of the prior trial, on double jeopardy grounds. The trial court granted Brady's motion to dismiss on that ground, relying on Gutierrez, which has since been overruled. State v. Gibson, 682 So.2d 545 (Fla.1996).
This is an area of criminal law that is becoming more and more confusing. Precedents are changing and shifting, as diverse permutations and variations of State v. Gray, 654 So.2d 552 (Fla.1995) work their way through the appellate courts, to the Florida Supreme Court. That court has now determined that further prosecutions for lesser included offenses are not barred in cases in which a defendant is convicted of a non-existent crime, if the jury was instructed on the lesser included offenses in the first trial. Gibson; State v. Wilson, 680 So.2d 411 (Fla.1996).
Further, based on the Gray case, the appellate courts have held that where a jury returns a general verdict of...
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Kauffman v. State, 97-2539.
...is a crime. See Taylor v. State, 444 So.2d 931 (Fla.1983); Morton v. State, 701 So.2d 644 (Fla. 5th DCA 1997); State v. Brady, 685 So.2d 984, 986 (Fla. 5th DCA), rev. denied, 691 So.2d 1079 (Fla.1997). Since its decision in Gray, the Florida Supreme Court has repeatedly validated the existe......
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Brady v. State , 5D10–3991.
...that he could be retried for the lesser offense of attempted manslaughter with a firearm (a second-degree felony). See State v. Brady, 685 So.2d 984 (Fla. 5th DCA 1997). The trial court summarily denied the motion and this appeal followed. The defendant's double jeopardy claim is barred by ......
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Cooper v. State
...there was some kind of weapon or firearm. Attempted manslaughter by culpable negligence is a nonexistent crime. See State v. Brady, 685 So.2d 984 (Fla. 5th DCA 1997); Taylor v. State, 444 So.2d 931 (Fla.1983). Appellant argues that it is fundamental error to instruct the jury that it may fi......
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Brady v. State, 97-2090
...vacated defendant's conviction because attempted manslaughter by culpable negligence is a nonexistent crime. See State v. Brady, 685 So.2d 984 (Fla. 5th DCA), rev. denied, 691 So.2d 1079 (Fla.1997); see also Taylor v. State, 444 So.2d 931 Thereafter, the state filed an amended information c......