5D07-2361 Gregory Hynes v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-2361

Case Date: 01/19/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2009

GREGORY HYNES, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant. ________________________________/ Opinion filed January 23, 2009. Appeal from the Circuit Court for Brevard County, George Maxwell III, Judge. James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee. Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee/CrossAppellant. Greg Riley Morton, Tallahassee, Amicus Curiae for Animal Legal Defense Fund. PER CURIAM. AFFIRMED; CROSS-APPEAL DISMISSED. See Exposito v. State, 891 So. 2d 525 (Fla. 2004). TORPY, J., and PLEUS, R., Senior Judge, concur. GRIFFIN, J., concurs specially with opinion. Case No. 5D07-2361

GRIFFIN, J., concurring specially.

5D07-2361

As the result of the supreme court of Florida's decision in Exposito v. State, 891 So. 2d 525 (Fla. 2004), there is no doubt that this court lacks jurisdiction to review the trial court's decision to reject the jury's verdict and to reduce the conviction of this defendant from felony cruelty to animals to a misdemeanor.1 The Legislature's failure to fill this jurisdictional gap by providing for review of a trial court's decision to acquit the defendant of the offense of which the jury found him guilty and instead convict the defendant of a lesser offense is frustrating in this case, because in my view, the trial court's decision is dangerously wrong. This case unfolded when a maintenance employee at an apartment complex in Brevard County found a Rottweiler, which he knew to be defendant's, loose on the grounds. The animal had evidently jumped out of a second story window. The dog's glands were swollen and it appeared as though it might be nursing puppies. After many unsuccessful attempts to reach the defendant at his listed place of employment, the maintenance worker entered the apartment. In the apartment were found the bloated body of a dead dog in a cage, two dead turtles, a dead lizard and a dead bird. One bird was found barely alive, as was one skinny, "dried out" snake. Also found alive, confined by a gate in the kitchen was an emaciated Australian Shepherd dog, stomach sunken in and surrounded by urine and feces. There was no evidence of food or water anywhere. This dog, whose name was

Interestingly, the trial judge was aware of the fact that his decision was not reviewable and took the unusual step of providing the parties with the controlling case law at the end of the sentencing hearing.

1

Pepsi, was lying down on its side and appeared unable to get up. It had to be carried from the apartment. The defendant was charged with felony animal cruelty. statute, section 828.12, Florida Statutes (2007) provides as follows: Cruelty to animals (1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both. (2) A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both. At trial, the veterinarian who examined Pepsi when she was first removed from the defendant's apartment testified that she was malnourished and dehydrated. He found no other cause for her condition other than that she needed food and water. An expert on the Australian Shepherd breed who examined Pepsi soon after she was taken to the local Humane Society testified that Pepsi had no muscle tone and little or no fat on its torso. She was not able to detect any food in its stomach. Photographs of the animals were introduced into evidence. Incredibly, the defendant confessed to animal control officers, but the jury never heard the confession because the trial court ruled that the State had failed to establish the corpus delicti of the crime. When questioned by animal control, the defendant first 2 The animal cruelty

claimed he had paid someone to care for the animals, but when he could not identify this person, he changed his story, next claiming he was financially unable to provide food for the dogs. When it was pointed out to him that a bag of dog food was found in his bedroom, he finally said that he was using starvation as a "training technique."2 The trial court appeared first to rule that no corpus delicti for the crime had been established because there was no evidence of any "act", only an omission to feed. Eventually, the State was able to convince the trial court that, because of the definitions for chapter 828, "omissions" and "neglect," as well as "acts," were equally proscribed. See

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