Ward v. State, 89-1943
| Decision Date | 11 September 1990 |
| Docket Number | No. 89-1943,89-1943 |
| Parties | 15 Fla. L. Weekly D2295 Michael WARD, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John Lipinski, Miami, for appellant.
Robert A. Butterworth, Atty. Gen., and Ivy R. Ginsberg, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and NESBITT and GERSTEN, JJ.
Appellant, Michael Ward, appeals his convictions and sentences for third degree murder with a firearm, attempted second degree murder with a firearm, three counts of culpable negligence, possession of a firearm while engaged in a criminal offense, and carrying a concealed firearm. We affirm.
All of appellant's charges arose from one incident where appellant fired a gun into a group of children. The children had been involved in a street fight with appellant's nephews. After the fight had ended, appellant approached some of the children and, in front of their family members, fired the gun, killing one child and injuring others. Eyewitnesses to the shooting, including a police officer, identified appellant as the person who fired the shots.
At trial, appellant claimed he fired the gun in self-defense after coming to investigate why someone had threatened his nephews during the prior fight. Appellant also claimed that some of the victims' injuries might have been caused by a boy who had been standing across the street, purportedly holding a firearm.
Appellant contends the trial court erred by refusing to give a jury instruction concerning the doctrine of independent act. Appellant also contends his sentence was improperly based on an incorrectly computed scoresheet and exceeded the guidelines without valid reasons.
Appellee, State, asserts that the trial court correctly refused the requested independent act jury instruction because the evidence at trial did not support the instruction. State further asserts that appellant's scoresheet and departure sentence were properly computed and supported by valid reasons.
The doctrine of independent act arises from circumstances where, after participating in a common plan or design, one co-felon does not participate in acts, committed by another co-felon, which fall outside of, and are foreign to, the common design of the original collaboration. See Parker v. State, 458 So.2d 750 (Fla.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985). In Parker, it is clear that the thrust of this doctrine is to exonerate one defendant from acts committed outside of the original plan or design by a co-felon. Parker, 458 So.2d at 752.
Nothing in the record supports a contention that the boy across the street, who might have possibly had a gun, participated with appellant in any common plan or design, and then acted outside that plan. There is no evidence that the boy either discharged the weapon or caused any injuries. Accordingly, the doctrine of independent act does not apply to these facts and the trial court properly denied the jury instruction.
Appellant's sentence exceeded the sentencing guidelines. The trial court entered three written reasons to depart from the guidelines: (1) the timing of the offenses and...
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...to, the common design of the original collaboration.” Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995) (quoting Ward v. State, 568 So.2d 452 (Fla. 3d DCA 1990)). Under these limited circumstances, a defendant whose exceeds the scope of the original plan is exonerated from any punishme......
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Hill v. State, 3D01-3017.
...words of the rule, an offense is properly scored as prior record under Rule 3.701 even if adjudication was withheld. Ward v. State, 568 So.2d 452 (Fla. 3d DCA 1990). We recognize that the First District Court of Appeal has reached a different conclusion in Batchelor v. State, 729 So.2d 956 ......
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