O. C. HUNTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellant was convicted of second-degree murder after being indicted for first-degree murder, but the trial court failed to instruct the jury on third-degree murder despite instructing on manslaughter. The court held that the omission of instructions on the immediately lesser degree of the offense of conviction constitutes harmless error per se, requiring reversal and a new trial.
The omission of jury instruction on the degree of the offense immediately lesser than the degree of conviction constitutes reversible error per se, requiring reversal and a new trial. The availability of a manslaughter instruction with equivalent penalties to third-degree murder does not cure the error because the jury should have been presented with all lesser included offenses.
[1] Failure to instruct the jury on a lesser degree of the offense charged, when requested and supported by the evidence, constitutes reversible error per se.
[2] A jury instruction omission is considered harmful error per se when the omitted instruction is for the degree of the offense immediately lesser than the degree of convict…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The court shall in all such cases charge the jury as to the degrees of the offense.”
Florida Rule of Criminal Procedure 3.490 mandates that courts must instruct the jury on all degrees of the offense charged
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was indicted for first-degree murder and found guilty of second-degree murder. The trial court instructed the jury on first-degree murder, s…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Per Se Reversible Error cases and more on FLexlaw
GLICKSTEIN, Judge.
Appellant was indicted for first degree murder and found guilty of second degree murder. The trial court instructed the jury on first and second degree murder and manslaughter, but over appellant’s objection, not on third degree murder. Appellee concedes this was error,1 leaving for our determination whether the error was harmless.
We start by noting that our sister court in dicta recognized:
We have been unable to discover a case where the harmless error rule was applied in a case where the trial court failed to instruct the jury as to lesser degrees of the offense charged.
Johnson v. State, 314 So. 2d 248, 250 (Fla.1st DCA 1975).
Although conceding error appellee argues that since the jury was given an instruction on manslaughter, a felony of the same degree with the same penalties as third degree murder,2 they could have pardoned appellant had they so desired by returning a verdict of manslaughter. We disagree and interpret the supreme court’s reasoning culminating with Abreau v. State, 363 So. 2d 1063 (Fla.1978), differently.
We believe that Abreau, supra, requires of an appellate court to find error harmful per se where the omitted instruction is for the degree of the offense immediately lesser than the degree of conviction3. This application was properly applied in Butler v. State, 379 So. 2d 715 (Fla.5th DCA 1980).
Therefore, we REVERSE and REMAND for a new trial.
HERSEY, J., and WETHERINGTON, GERALD T., Associate Judge, concur. .Florida Rule of Criminal Procedure 3.490 provides:
If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense. (Emphasis added)
Accord Brown v. State, 206 So. 2d 377, 381 (Fla.1968), interpreting Section 919.14, Florida Statutes (1965), the predecessor to the above rule.
. Compare Sections 782.04(4) and 782.07, Florida Statutes (1979).
. Abreau v. State, 363 So. 2d 1063 (Fla.1978), held that it is reversible error per se when the jury is not instructed on the next immediate lesser offense from the offense charged if they return a verdict for the offense charged. We believe, as did Butler v. State, 379 So. 2d 715 (Fla.5th DCA 1980), that the logical extension of Abreau is that it is also reversible error per se when the jury is not instructed on the next immediate lesser offense than the offense of conviction.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
-
Herrington v. State, 538 So. 2d 850 (Fla. 1989)…ird-degree murder is only one step removed from the crime charged in the information. Dicicco v. State, 496 So. 2d 864 (Fla. 2d DCA 1986); Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA), review denied, 408 So. 2d 1095 (Fla.1981); Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980). We disapprove the opinion of the court below and remand the case with directions to vacate Herrington’s conviction and grant him a new trial. It is so ordered. EHRLICH, C.J., and OVERTON, MCDONALD, BARKETT and KOGAN, JJ., con…
-
Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA 1981)…nor, is the offense one step removed from the offense for which the defendant was convicted. It was thus per se reversible error to refuse to give the instruction requested by Piantadosi. Reddick v. State, 394 So. 2d 417 (Fla.1981); Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980); Butler v. State, 379 So. 2d 715 (Fla. 5th DCA 1980).4 Compare State v. Abreau, 363 So. 2d 1063 (Fla.1978). See also Williams v. State, 399 So. 2d 999, 1003 n.10 (Fla.3d DCA 1981). We are compelled [*385] to reverse the defendant…
-
Brindley Marshall v. State, 529 So. 2d 797 (Fla. 3d DCA 1988)…is convicted. Abreau, however, has been construed as requiring that “an appellate court ... find error harmful per se where the omitted instruction is for the degree of the offense immediately lesser than the degree of conviction. ” Hunter v. State, 389 So. 2d 661, 661 (Fla. 4th DCA 1980) (emphasis added). As the court in Hunter explained: “Abreau v. State, 363 So. 2d 1063 (Fla. 1978), held that it is reversible error per se when the jury is not instructed on the next immediate lesser offense from the offens…1 / 2
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Johnson v. State, 314 So. 2d 248 (Fla. 1st DCA 1975)
- Flozell Butler v. State, 379 So. 2d 715 (Fla. 5th DCA 1980)