NATHAN BLAKE KILLINGSWORTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1991-08-15
No. 90-2480
WIGGINTON and WOLF, JJ„ concur.
584 So. 2d 647 Florida District Court of Appeal, First District (1991) Positive Treatment
Cited by 34 cases

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Holding

The court held that the state failed to prove a prima facie case for possession of a firearm by a convicted felon and culpable negligence.


Headnotes

[1] To prove possession of a firearm by a convicted felon, the state must prove the defendant's prior felony conviction and the defendant's identity as the perpetrator, and m…

[2] A prima facie case for culpable negligence requires evidence of negligence of a gross and flagrant character evincing a reckless disregard for the safety of others.

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Facts & Procedural History

The defendant was loading a pistol in his car when it discharged, striking a child who was nearby. The state sought to prove a prior felony conviction…

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Opinion of the Court
ALLEN, Judge.

ALLEN, Judge.

The appellant appeals from his judgment of conviction and sentences for possession of a firearm by a convicted felon and culpable negligence, in violation of sections 790.23 and 784.05(2), Florida Statutes. Because we find that the state failed to prove a prima facie case as to either of these crimes, we reverse the judgment and sentences and remand with directions that the appellant be discharged.

On September 2, 1989, the appellant and his family went to the residence of Harold Smith and his family for a visit. The Kill-ingsworth and Smith families were friends and visited together regularly. Shortly after the Killingsworths’ arrival, Harold Smith walked outside to meet the appellant. Smith was followed by his young daughter, Rachel. He found the appellant seated in an automobile, loading a pistol. Momentarily, the pistol discharged and Rachel Smith was struck in the leg.

Evidence presented by the state’s firearms expert revealed that the pistol had a dangerous loading procedure. Specifically, the hammer had to be pulled back for loading and could not be returned to its resting position without releasing the trigger. The firearms expert testified, “Anytime you are fiddling with' the hammer, if the gun is loaded, the hammer could slip off [your thumb] and fire.”

To prove that the appellant was a previously convicted felon, the state offered into evidence a certified copy of a May 31, 1989 judgment, adjudging “Nathan B. Killings-worth” guilty of aggravated assault. The state offered no extrinsic evidence that the appellant was the person named in the judgment.

As part of its prima facie case in a prosecution for possession of a firearm by a convicted felon, the state must prove that the defendant has previously been convicted of a felony. To do this, the state must prove the historical fact of a prior felony conviction and the identity of the defendant as the perpetrator. See Barnhill v. State, 41 So. 2d 329, 332 (Fla.1949). Although the historical fact of a prior felony conviction can be proved by introducing a certified copy of a prior felony judgment, McCaskill v. State, 564 So. 2d 573 (Fla. 1st DCA 1990), mere identity between the name appearing on the prior judgment and the name of the defendant on trial does not satisfy the state’s obligation to present affirmative evidence that they are the same person. See Miller v. State, 573 So. 2d 405 (Fla. 2d DCA 1991), and authorities cited therein.

Because the certified copy of the judgment introduced in the trial below was the only evidence offered by the state to prove that the appellant was a convicted felon, the appellant’s identity as the person named in the judgment was never satisfactorily proved in the state’s case in chief. See Wagner v. State, 421 So. 2d 826 (Fla. 1st DCA 1982) (state may not rely upon evidence presented during defendant’s case to supply essential missing links in the state’s prima facie case). Therefore, the trial court erred in denying the appellant’s motion for judgment of acquittal on the count charging him with possession of a firearm by a convicted felon.

Culpable negligence is negligence of a gross and flagrant character which evinces a reckless disregard for the safety of others. It is that entire want of care which raises a presumption of indifference to consequences. State v. Greene, 348 So. 2d 3 (Fla.1977).

The testimony presented at trial, considered in the light most favorable to the state, reveals that in the presence of others, the appellant was sitting in an automobile, loading a pistol. The appellant held the pistol between his legs. There is no evidence that he was pointing the pistol at anyone. Indeed, the uncontradicted evidence is that when the pistol discharged, it struck the interior of the automobile before it ricocheted and struck the child who was standing nearby. Even the child’s father, state witness Harold Smith, said, “The way he had it pointed, I didn’t see where it was no danger of it. I have had guns, and I have loaded them like that.” This evidence does not suggest negligence of a gross and flagrant character, evincing a reckless dis regard for the safety of others. Compare Heston v. State, 484 So. 2d 84 (Fla. 2d DCA 1986); Dominique v. State, 435 So. 2d 974 (Fla. 3d DCA 1983); Parker v. State, 318 So. 2d 502 (Fla. 1st DCA), cert. denied, 330 So. 2d 21 (Fla.1976); and Getsie v. State, 193 So. 2d 679 (Fla. 4th DCA 1966), cert. denied, 201 So. 2d 464 (Fla.1967). Therefore, the trial court erred in denying the appellant’s motion for judgment of acquittal on the count charging him with culpable negligence.

The judgment and the sentences are reversed. This cause is remanded to the trial court with directions that the appellant be discharged.

WIGGINTON and WOLF, JJ„ concur.


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Cited By (18 total)

  • State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)
    …5.084, Florida Statutes); Kerney v. State, 605 So. 2d 159 (Fla. 2d DCA 1992) (resentencing ordered where there was insufficient proof that defendant was released from custody within five years of commission of instant crime); Killingsworth v. State, 584 So. 2d 647 (Fla. 1st DCA 1991) (resentencing required where State did not provide proper fingerprint authentication); Wagner v. State, 578 So. 2d 56 (Fla. 1st DCA 1991) (ordering resentencing after trial court erred in sentencing defendant as HFO based on prev…
  • Emergency ONE, Inc. v. Keffer, 652 So. 2d 1233 (Fla. 1st DCA 1995)
    …defined as conduct including “a gross and flagrant character which evinces a reckless disregard for the safety of others,” and constituting “an entire want of care which raises a presumption of indifference to consequences.” Killingsworth v. State, 584 So. 2d 647, 648 (Fla. 1st DCA 1991). Recent decisions adhere to the strict interpretation of the workers’ compensation immunity provision as set forth by the supreme court in Fisher v. Shenandoah General Construction Co., 498 So. 2d 882, 883 (Fla.1986). See,…
  • Ross v. Baker, 632 So. 2d 224 (Fla. 2d DCA 1994)
    …). “Culpable negligence is negligence of a gross and flagrant character which evinces a reckless disregard for the safety of others. It is that entire want of care which raises a presumption of indifference to consequences.” Killingsworth v. State, 584 So. 2d 647 (Fla. 1st DCA 1991); see also State v. Greene, 348 So. 2d 3 (Fla.1977); Fla. Std. Jury Instr. (Crim.) [89]. In this case, it is arguable that the danger presented by the hole could have, and should have, been protected by a better method than a loo…

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Authorities Cited (13 total)

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