FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, Donna L.
S. Purdy, Public Defender, and Kevin R. Holtz, Assistant
Public Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Samuel A.
Perrone, Assistant Attorney General, Daytona Beach, for
ON MOTION FOR REHEARING
consideration of the State's motion for rehearing, we
deny the motion but withdraw our earlier opinion and
substitute the following revised opinion in its place:
Barnes was convicted, after a jury trial, of first-degree
murder. On appeal, he contends that there was insufficient
evidence of premeditation to support a first-degree murder
conviction. In his supplemental brief,  he argued that
defense counsel's failure to raise this issue below
constituted ineffective assistance of counsel apparent from
the face of the record. We agree. Accordingly, we reverse and
remand this case to the trial court with instructions to
enter a judgment of second-degree murder and to sentence
Barnes accordingly. We conclude that the other issues raised
on appeal by Barnes are without merit.
evidence presented below showed that Barnes was an
often-times homeless drug addict living in Orlando, Florida.
He had previously been romantically involved with the victim.
According to a statement Barnes gave to law enforcement, that
romantic relationship ended approximately two months prior to
the victim's murder. The victim had unsuccessfully sought
to help Barnes overcome his drug addiction issues, even after
their romantic relationship ended. For example, she would
safe-keep Barnes' Electronic Balance and Transfer
("EBT") card because Barnes had sold or traded the
card in the past to obtain illegal drugs.
victim owned an insurance agency office located in Sanford,
Florida. She was murdered at her office around noon on
January 6, 2014. Based on the testimony of two neighbors,
Barnes was placed at the victim's office prior to, and
immediately after, the sound of four rapid gunshots. Both of
the neighbors had previously seen Barnes outside the
victim's office doing odd jobs. One of the neighbors
testified that she had previously witnessed Barnes and the
victim interacting in a manner that led her to believe that
they were involved in a relationship. A client found the
victim's body in the victim's office within minutes
after Barnes was seen quickly walking away from the scene.
medical examiner's testimony reflected that the victim
had been shot four times. The officers who responded to the scene
found some of the victim's desk drawers pulled open and
disheveled in a manner consistent with someone rummaging
through them. Other desk drawers appeared untouched. The
victim's purse was located in one of the
"untouched" drawers. Barnes' EBT card was found
in the victim's purse. There was no evidence that any
property had been taken from the victim's office.
statement Barnes gave to the police two days later, he
claimed that he had never left Orlando on January 6. However,
an Orlando pastor testified that on the evening of January 5,
he had provided Barnes with forty dollars, in part, because
Barnes had stated that he needed to obtain a bus pass to
travel to Sanford. Notably, the EBT card was scheduled to be
"reloaded" on January 9.
conclusion of the State's evidence, Barnes' counsel
unsuccessfully moved for a judgment of acquittal, arguing
that there was a lack of evidence that Barnes had committed
the homicide or that he possessed an intent to kill the
victim. However, defense counsel failed to argue the
sufficiency of the evidence (or lack thereof) regarding
the denial of his motion for judgment of acquittal, Barnes
testified on his own behalf. He acknowledged that he had
known the victim for approximately two and one-half years and
that they had been involved in a romantic relationship until
a few months prior to her death. Barnes candidly acknowledged
his drug addiction problem and explained that the victim
retained his EBT card because he had previously used the cash
on the card to buy illegal drugs. When the card was reloaded
on the ninth day of each month, Barnes and the victim would
grocery shop together.
to Barnes, he intended to travel to Sanford on January 9 to
obtain his EBT card and go grocery shopping. He admitted
receiving forty dollars from the Orlando pastor on the
evening of January 5, but stated that he used the money to
buy drugs instead of using it to travel to Sanford. Barnes