Wright v. State, 73--877

• Decision Date: 12 September 1975
• Docket Number: No. 73--877,73--877
• Citation: Wright v. State, 318 So.2d 477 (Fla. App. 1975)
• Parties: Bernard Eric WRIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 477

318 So.2d 477

Bernard Eric WRIGHT, Appellant, v. STATE of Florida, Appellee.

No. 73--877.

District Court of Appeal of Florida, Fourth District.

Sept. 12, 1975.

Rendell Brown of Bailey & Brown, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.

OWEN, Judge.

Appellant was convicted of (1) carrying a concealed firearm, (2) third degree murder, and (3) assault with intent to commit murder in the third degree. Of the three points raised on this appeal, the first has merit, the second was abandoned at oral argument, and the third is without merit.

Appellant's first point, and the only one with merit, questions the sufficiency of the evidence to sustain the conviction for third degree murder. The State's case as to this charge was based solely upon circumstantial evidence. Appellant and one Lonnie Wilson a/k/a Lonnie Durham ¹ were involved in a crap game near Rolle's Bar when they became involved in an argument. Appellant went outside and Wilson followed firing two shots from a pistol into the ground near appellant's feet. One thing led to another and in a few minutes a crowd had gathered. Appellant and Wilson each had a gun and started firing at the other. Several persons in the crowd also drew guns and began shooting. A total of twenty to twenty-five shots were fired. When the shooting was all over, Wilson had been wounded and a by-stander, one Pop McKenzie, had been shot and killed. There was no direct evidence that the latter's death resulted from a shot fired by appellant and the circumstantial evidence to support such, while consistent with appellant's guilt, was not inconsistent with a reasonable hypothesis of his innocence, i.e., that the fatal bullet came from one of the several other guns fired during the melee. For this reason it was error not to grant appellant's motion for judgment of acquittal on the murder charge and the judgment as to that count is reversed and the sentence thereon vacated.

Appellant's third point is that the trial court erred in its refusal to grant a severance from the misjoined codefendant, Wilson. The latter made a motion for severance which was denied. On Wilson's appeal we held that denial of such motion for severance was error and reversed his conviction, remanding for a new trial. Wilson v. State, 298 So.2d 433 (4th DCA Fla.1974). However, appellant did not make a motion for severance. It has been held...