DEBORAH WESLEY EVANS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Evans was convicted of second-degree murder for shooting her husband during a domestic altercation. The Florida District Court of Appeal affirmed her conviction and 30-year sentence, rejecting her self-defense claim and finding she acted with a depraved mind.
The court affirmed the conviction, finding the evidence sufficient to support a depraved-mind murder conviction. The court rejected Evans' claim of fundamental error regarding the incorrect minimum sentence instruction because counsel failed to preserve the issue by objecting at trial and the mistake did not constitute fundamental error.
[1] Evidence viewed in the light most favorable to the state can support a conviction for second-degree murder if it demonstrates the defendant acted with a "depraved mind" o…
[2] A jury instruction error regarding the minimum sentence for a crime is not preserved for appeal if counsel fails to object at trial.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the evidence, viewed in the light most favorable to the state, supports a determination that Evans acted with a "depraved mind" in unjustifiably killing the victim out of a sense of anger and vengeance, rather than in self-defense as she claimed”
Establishes the standard of review and the court's finding that evidence supported the depraved-mind murder conviction
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Join FLexlaw to unlock all legal intelligenceEvans shot her husband during a domestic altercation. She claimed self-defense, but the evidence showed she acted out of anger and vengeance rather th…
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SCHWARTZ, Chief Judge.
We affirm the appellant’s conviction and thirty year sentence for second-degree murder in the shooting death of her husband which occurred during a domestic altercation. It is first clear, her contention to the contrary notwithstanding, that the evidence, viewed in the light most favorable to the state, supports a determination that Evans acted with a “depraved mind” in unjustifiably killing the victim out of a sense of anger and vengeance, rather than in self-defense as she claimed, and that she was thus guilty of the crime charged. Ramsey v. State, 114 Fla. 766, 154 So. 855 (1934); see Walden v. State, 191 So. 2d 68 (Fla. 1st DCA 1966); compare, e.g., McKnight v. State, 341 So. 2d 261 (Fla. 3d DCA 1977), cert. denied, 348 So. 2d 953 (Fla.1977); Martinez v. State, 360 So. 2d 108 (Fla. 3d DCA 1978), cert. denied, 367 So. 2d 1125 (Fla.1979).
Because it was not preserved below, we also reject Evans’ claim to a new trial because the trial court erroneously charged the jury that three years, rather than the thirty years he actually imposed on the defendant, was the minimum sentence for second-degree murder with a firearm. While this statement was acknowl- edgedly incorrect, counsel made no objection to it at trial and the issue may therefore not be raised on appeal. Fla.R. Crim.P. 3.390(d).
Nor does the exception to this rule, which arises when fundamental error is involved, State v. Smith, 240 So. 2d 807 (Fla.1970), apply here. It is true that the substantial difference in the minimum sentence was, particularly in the domestic situation involved in this case, significant to the jury’s possible exercise of its pardon power — which is the very reason for the Tascano 1 — Fla.R.Crim.P. 3.390(a) requirement that the maximum and minimum penalties be given in the first place. See Williams v. State, 399 So. 2d 999, 1002-1003 (Fla. 3d DCA 1981), rev. denied, 412 So. 2d 471 (Fla.1982).
It surely cannot be said, however, as the fundamental error doctrine requires, that a mistake, even a serious one, in this area amounts to a “denial of due process,” Castor v. State, 365 So. 2d 701, 704, n. 7 (Fla.1978), or “goes to the foundation of the case [itself] or ... the merits of the cause of action.” Sanford v. Rubin, 237 So. 2d 134 (Fla.1970), quoted in Ray v. State, 403 So. 2d 956, 960 (Fla.1981).
See Thomas v. State, 419 So. 2d 634 (Fla.1982).
The remaining points raised with respect to the primary judgment have been considered and likewise found to be without merit.
It appears that the separate order fixing a $2,500 lien under Sec. 27.56, Fla. Stat. (1983) for the services of the public defender was entered without following the procedure required by Jenkins v. State, 444 So. 2d 947, 950 (Fla.1984).2 It is therefore vacated for further proceedings to be conducted in accordance with Jenkins.
Affirmed, vacated.
. Tascano v. State, 393 So. 2d 540 (Fla.1980).
. Jenkins was decided after the trial court's ruling.
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Cited By
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Wilkins v. State, 479 So. 2d 297 (Fla. 3d DCA 1985)…see Jenkins v. State, 444 So. 2d 947 (Fla.1984), and, therefore, reverse that order as well. Our reversal is without prejudice to the state to seek imposition of fees and costs upon proper notice. Jenkins, 444 So. 2d at 950; see also Evans v. State, 452 So. 2d 987, 989 (Fla. 3d DCA 1984). Reversed and remanded.…
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Santana v. State, 535 So. 2d 689 (Fla. 3d DCA 1988)…rt. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Dellinger v. State, 495 So. 2d 197, 198 (Fla. 5th DCA 1986), cert. denied, 503 So. 2d 326 (Fla.1987); Bradwell [*690] v. State, 468 So. 2d 1113, 1114 (Fla. 3d DCA 1985); Evans v. State, 452 So. 2d 987, 988 (Fla. 3d DCA 1984); LaChance v. State, 396 So. 2d 1234, 1235 (Fla. 2d DCA 1981). Second, there was no discovery violation below, and, consequently no Richardson hearing was required to be held. See Matheson v. State, 500 So. 2d 1341, 1342-43 (F…
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Readon v. State, 755 So. 2d 197 (Fla. 3d DCA 2000)…PER CURIAM. Affirmed. K.B. v. State, 594 So. 2d 825 (Fla. 3d DCA 1992); see Evans v. State, 452 So. 2d 987 (Fla. 3d DCA 1984); Grissom v. State, 237 So. 2d 57 (Fla. 3d DCA 1970).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- State v. Smith, 240 So. 2d 807 (Fla. 1970)
- Ramsey v. State, 114 Fla. 766 (Fla. 1934)
- Thomas v. State, 419 So. 2d 634 (Fla. 1982)
- Sobol v. Sobol, 191 So. 2d 68 (Fla. 3d DCA 1966)
- McKNIGHT v. State, 341 So. 2d 261 (Fla. 3d DCA 1977)