Bundy v. Florida Parole & Probation Commission

MILLS, Judge. Bundy appeals Florida Parole and Probation Commission action establishing his presumptive parole release date. We affirm. Bundy argues that § 947.165(1), Florida Statutes (1981), prohibits an aggravation for exceptionally brutal or heinous behavior because a depraved mind is an element of second degree murder of which he was convicted. We do not agree. A depraved mind is equated with the common meaning of malice, i.e., ill will, hatred, spite, or evil intent, an indifference to life. Marasa v. State, 394 So.2d 544 (Fla. 5th DCA 1981). This is less than brutal or heinous, in particular, two shootings, strangulation, repeated stabbing, and a beating. Exceptionally brutal behavior is not an element of second degree murder. No violation of the plea bargain is revealed in the record, nor is this the proper forum to raise this issue. No abuse of discretion is shown in the Commission’s failure to apply certain mitigating factors. AFFIRMED. WIGGINTON, J., concurs. ERVIN, J., dissents with opinion.