5th District Court of Appeal
Case No. 5D21-1569
June 2022

Kevin Patrick Kelley, Jr. vs. State of Florida

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Case Details


In a 2-1 decision, the majority reversed the trial court conviction of neglect of a child and ordered that the case be dismissed. The ruling reads:

"Kelley’s conduct, while negligent and deeply irresponsible, did not rise to the egregious level of conduct necessary to show culpable negligence."

The majority considered what the Prosecutor would have needed to prove to support the verdict. They determined:

  • "Neglect of a child" means someone neglects a child “willfully or by culpable negligence,” even if the child does not get hurt.
  • "Culpable negligence" means someone shows reckless disregard for human life. Or indifference to consequences and a disregard for the safety of others. It is used when behavior is so extreme that if a person died, a charge of manslaughter would be appropriate.

The majority reviewed Kelley's case. They agree he was not acting as a good caregiver, but that he showed concern for the child. He never left the child alone, and they argue that in itself made the child more safe. His body made the child more visible and was a barrier between the child and a vehicle. They also argue he helped the child onto the sidewalk after the second honk.

The majority also considered the surroundings. The road does not often have many cars on it, and did not have many during the incident. The cars that did approach were likely going under the speed limit of 25 mph. Kelley and the child were easily seen by the officer from 100 yards away.

The majority reversed his conviction because they determined the Prosecutor did not prove culpable negligence. The Prosecutor proved simple negligence or an "incomplete care" for the child.

Dissent: Judge Wallis

"...the evidence, when taken in the light most favorable to the State, was sufficient to show that Kelley acted with culpable negligence—a flagrant disregard for the child's safety..."

In Wallis' dissent, he says Kelley admitted to drinking all day and there is reason to believe he drank a 24-pack of beer. Wallis agrees that Kelley did not physically leave the child alone and succeeded in getting to the sidewalk. But Kelley was so intoxicated it significantly impacted his ability to keep the child safe. Wallis argues that it was as if the child did not have any adult supervision.

Wallis says that choosing to travel in the middle of the road also put the child in danger. He points out there were sidewalks available on either side of the road. If the off-duty officer hadn't slowed the cars behind him, a car may have hit the child. Wallis argues the child could have been seriously injured or killed.

Wallis believes Kelley's behavior shows that he intentionally reduced his ability to function and then put the child in danger. He says the evidence shows Kelley acted with culpable negligence (defined as a "flagrant disregard for the child's safety"). He believes the trial court was correct to not acquit Kelley. He supports the jury's verdict.

Read the full ruling


An off-duty police officer saw Kelley walking in the middle of a two lane road with a 25 mph speed limit. with a child next to him on a toy scooter. Kelley swayed back and forth as he walked. At first the off-duty officer was the only car on the road. Soon, he saw cars approach from both directions. The off-duty officer slowed down traffic in his lane and honked twice. Kelley then helped the child onto the sidewalk, but stumbled and moved slowly.

The off-duty officer followed the pair as they walked to the park. He called for police assistance because the child wasn't dressed for the cold weather. While he waited at the park for the assistance to arrive, he saw Kelley fall down as the child played. Someone else had also called to report the child's clothing and that Kelley had fallen down in the road.

When the on-duty officer arrived, Kelley had trouble speaking clearly. He wasn't able to give the on-duty officer his name. The child was picked up by his mother, and Kelley was charged with neglect of a child.

During his trial, he requested the judge acquit him because his behavior didn't meet the legal standard for conviction. The trial judge did not, and the jury found him guilty. He appealed this conviction, saying that the trial judge should not have denied his request for acquittal. He argued his behavior was not "culpable negligence", which is required to be found guilty.

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