KEITH MALLEY
v.
STATE OF FLORIDA
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A conviction for culpable negligence under Florida Statute § 784.05(2) (first-degree misdemeanor) cannot stand when jury instructions fail to require proof of actual injury and no evidence of actual injury was presented.
[1] A conviction for culpable negligence as a first-degree misdemeanor under Florida Statute § 784.05(2) is improper when jury instructions omit the statutory requirement of…
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Join FLexlaw to unlock all legal intelligence“The jury instructions thus described only a violation of section 784.05(1), Florida Statutes (2023) (a second-degree misdemeanor that requires exposing another person to personal injury). Furthermore, the State conceded no evidence existed of an actual injury to the child.”
Court's explanation of why the first-degree misdemeanor conviction was improper
Malley was convicted by jury of intentional interference with custody, culpable negligence, and misdemeanor battery. The circuit court entered judgmen…
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KEITH MALLEY, Appellant,
v.
STATE OF FLORIDA, Appellee.
No. 4D2025-0086
[January 14, 2026]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James Nutt, Judge; L.T. Case No. 50-2023-CF-007620-
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Carlos A. Canet of Law Office of Carlos A. Canet, P.A., Plantation, for appellant.
James Uthmeier, Attorney General, Tallahassee, and Heidi L. Bettendorf, Senior Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
The defendant appeals his jury trial convictions for intentional interference with custody, culpable negligence and misdemeanor battery. We write to address only the defendant’s conviction for culpable negligence (“Count 2”), which we reverse and remand for correction of the judgment.
On Count 2, the circuit court entered judgment against the defendant for culpable negligence in violation of section 784.05(2), Florida Statutes (2023) (a first-degree misdemeanor that requires proof of an actual injury). The jury instructions explicitly stated that actual injury was not required to convict the defendant of Count 2; instead, the State needed to prove only that the defendant had exposed the child to personal injury and that the defendant did so through culpable negligence.
The jury instructions thus described only a violation of section 784.05(1), Florida Statutes (2023) (a second-degree misdemeanor that requires exposing another person to personal injury). Furthermore, the
2
State conceded no evidence existed of an actual injury to the child. Accordingly, the defendant’s conviction for culpable negligence as a firstdegree misdemeanor was error. See Gibson v. State, 379 So. 3d 576, 578 (Fla. 5th DCA 2024).
Thus, we reverse the defendant’s conviction under Count 2 for culpable negligence as a first-degree misdemeanor in violation of section 784.05(2), and remand for Count 2 of the judgment to be corrected to reflect a conviction for culpable negligence as a second-degree misdemeanor in violation of section 784.05(1). See id. In all other respects, we affirm without comment.
Affirmed in part, reversed in part and remanded with instructions.
KUNTZ, C.J., CONNER and SHAW, JJ., concur.
* * *
Not final until disposition of timely-filed motion for rehearing.