JOSEPH KEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the jury instruction on child abuse was erroneous, the defendant was not prejudiced. However, the trial court erred in adding points to the sentencing scoresheet for the victim's death.
Joseph Key was convicted of battery and third-degree felony child abuse following the death of his girlfriend's daughter. He appealed his conviction a…
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DAVIS, Judge.
Joseph Key challenges his conviction and sentence for battery and third-degree felony child abuse. These charges arose out of the death of the two-year-old daughter of Key’s girlfriend.
Key first argues that the trial court erred by giving the jury an instruction on child abuse that included the element of “great bodily harm.” While we agree that the jury instruction was incorrect, we conclude that Key was not prejudiced by the error. The erroneous instruction made it harder for the State to convict Key, requiring proof of a greater injury than the correct instruction required. See Raford v. State, 25 Fla. L. Weekly D2271, 2000 WL 1345008 (Fla. 4th DCA Sept.20, 2000).
Key also maintains that the trial court erred by adding 120 points to his sentencing scoresheet for the victim’s death. We agree. Because the jury convicted Key of the lesser included offense of battery and not of the charged offense of first-degree murder, he should not have been assessed points for the victim’s death. See Rodriguez v. State, 666 So. 2d 234 (Fla. 2d DCA 1995); Harris v. State, 658 So. 2d 1226 (Fla. 4th DCA 1995).
Upon remand, the trial court should re-sentence Key without assessing 120 points for the victim’s death, but may impose other appropriate victim injury points.
Affirmed in part, reversed in part, and remanded for resentencing.
THREADGILL, A.C.J., and FULMER, J., Concur.
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Jefferies v. State, 849 So. 2d 401 (Fla. 2d DCA 2003)…SENIOR JUDGE, Concur. . Although mooted by our disposition in reversing the conviction, the State properly conceded the second issue, that victim death points were wrongly added to the defendant’s sentencing guidelines scoresheet. See Key v. State, 779 So. 2d 525 (Fla. 2d DCA 2000). . § 784.041, Fla. Stat. (1999). . The standard jury instruction on manslaughter defines culpable negligence in the following manner: Each of us has a duty to act reasonably toward others. If there is a violation of that duty,…
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Griffis v. State, 848 So. 2d 422 (Fla. 1st DCA 2003)…egligence. Being inherently harmful, fundamental er [*428] ror is not subject to harmless error review. Reed, 837 So. 2d at 369-70. Thus, the confusing and erroneous instruction given, and the effect thereof, distinguish this case from Key v. State, 779 So. 2d 525 (Fla. 2d DCA 2001) (finding defendant convicted of third-degree child abuse was not prejudiced by erroneous jury instruction that included element of great bodily harm, for erroneous instruction required proof of greater injury than correct instruct…
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KEY v. State, 837 So. 2d 535 (Fla. 2d DCA 2003)…the child’s death on his guidelines scoresheet. Key appealed the trial court’s assessment of victim injury points for death, and this court reversed with directions that the court could assess “other appropriate victim injury points.” Key v. State, 779 So. 2d 525, 526 (Fla. 2d DCA 2000), review denied, 794 So. 2d 605 (Fla.2001). On remand, the trial court assessed forty points for severe victim injury. Key then filed the present appeal, arguing that the trial court abused its discretion in finding Key respon…1 / 2
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
- Harris v. State, 658 So. 2d 1226 (Fla. 4th DCA 1995)
- Rodriguez v. State, 666 So. 2d 234 (Fla. 2d DCA 1995)