5D03-2513 Joshua Smalley v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-2513

Case Date: 11/15/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

JOSHUA SMALLEY, Appellant, v. STATE OF FLORIDA, Appellee. ______________________________/ Opinion filed November 19, 2004 Appeal from the Circuit Court for Brevard County, John M. Griesbaum, Judge. James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach for Appellee. SHARP, W., J. Smalley appeals from his conviction for second degree murder1 following a jury trial. He raises three points on appeal: the trial court should have granted his motion for judgment of acquittal because there was insufficient evidence to provide a basis for the jury's determination that the shooting of the victim was done with ill will, hatred, spite or an evil intent; the trial court should have granted his motion for mistrial CASE NO. 5D03-2513

1

Section 782.04(2), Florida Statutes (2002).

because the prosecutor violated a pre-trial ruling barring testimony that Smalley had possessed and or discharged the firearm involved in this case, on a prior occasion; and that the trial court erred in requiring Smalley, at sentencing, to submit biological specimens for DNA analysis pursuant to section 943.325. We affirm. A conviction for second degree murder requires proof that the defendant killed the victim with a depraved mind regardless of human life. See

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