GEORGE VICTOR FRANKLIN, A/K/A CHARLES GORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Franklin was convicted of first-degree murder and sentenced to death for the shooting death of a liquor store owner. The Florida Supreme Court reversed, holding that the trial court's failure to instruct the jury on the elements of the underlying felony (robbery) in a felony-murder case constituted reversible error that could not be deemed harmless.
The failure to instruct on the underlying felony in a felony-murder case is fundamental error requiring reversal. Although the error may be deemed harmless if the reviewing court is satisfied beyond a reasonable doubt that the failure was not prejudicial, the court cannot find harmlessness here because the primary thrust of the state's case was felony murder and it is at least as likely as not that the jury based its verdict on that theory.
[1] A conviction for first-degree murder based on felony murder requires the jury to be instructed on the elements of the underlying felony.
[2] The complete failure to instruct the jury on the elements of an underlying felony in a felony-murder case constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“This Court recently found the complete failure to give any instruction on an underlying felony to be fundamental error.”
Establishes that failure to instruct on the underlying felony in a felony-murder case is fundamental error requiring reversal.
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Join FLexlaw to unlock all legal intelligenceFranklin and Roy Render were indicted for the shooting death of a liquor store owner. The jury acquitted Render but found Franklin guilty and recommen…
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PER CURIAM.
Franklin appeals his conviction of first-degree murder and sentence of death. We have jurisdiction 1 and reverse.
An indictment charged Franklin and Roy Render with one count of first-degree murder each for the shooting death of a liquor store owner. The jury acquitted Render, but found Franklin guilty and recommended the death penalty. The trial court concurred, finding four aggravating factors and no mitigating circumstances, and imposed the death sentence.
At trial the state proceeded on alternative theories of premeditation and felony murder. At the charge conference, however, neither of the defense attorneys nor the prosecutor requested an instruction defining the underlying felony, robbery. The trial court did not propose such a charge, and, consequently, the jury received no instruction on the underlying felony.
Franklin contends that failing to instruct on the underlying felony in a felony-murder case requires reversal. We agree.
This Court recently found the complete failure to give any instruction on an underlying felony to be fundamental error. State v. Jones, 377 So. 2d 1163 (Fla.1979). Even though Franklin raises this point for the first time in this Court while the prosecutor in Jones brought the omission to the trial court’s attention, Jones controls the instant case.
We reject the state’s argument that Jones is inapplicable to the instant case. Relying on Frazier v. State, 107 So. 2d 16 (Fla.1958), the state contends that the prosecution’s presentation of evidence sufficient to show premeditation renders harmless any error in the felony-murder instruction. When the state seeks a conviction of first-degree murder on the dual theories of premeditation and felony murder and there is error because the trial judge fails to instruct on the underlying felony, the conviction can stand only if the error is harmless. We adopt the harmless error test enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 706 (1967). The reviewing court must be satisfied beyond a reasonable doubt that the failure to so instruct was not prejudicial and did not contribute to the defendant’s conviction.
In this case the killing resulted from an exchange of bullets when Franklin allegedly sought to rob the victim’s liquor store. The primary thrust of the state’s case was felony murder. In closing argument felony murder was the dominant theme, and, indeed, the facts demonstrate felony murder more clearly than premeditation. It is at least as likely as not that the jury based its verdict on felony murder. The failure to instruct on the underlying felony cannot be considered harmless error in this case. Compare Jones with Knight v. State, 394 So. 2d 997 (Fla.1981).
While it is not necessary to instruct on the elements of an underlying felony with the particularity required if that felony were the primary case charged, the elements must be sufficiently defined to assure the defendant a fair trial. 377 So. 2d at 1164. See Vasil v. State, 374 So. 2d 465 (Fla. 1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980); Robles v. State, 188 So. 2d 789 (Fla.1966). Counsel’s failure does not relieve a trial court of the duty to give all charges necessary to a fair trial of the issues. Id. at 793.
Accordingly, Franklin’s conviction and sentence are reversed, and this cause is remanded for a new trial.2
It is so ordered. SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND and McDONALD, JJ., concur. ADKINS and ALDERMAN, JJ., dissent.
. Art. V, § 3(b)(1), Fla. Const. . Due to our holding, we find it unnecessary to address the other points on appeal.
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Occhicone v. State, 570 So. 2d 902 (Fla. 1990)…he issue had been preserved, however, we would find any error regarding this instruction harmless. If the state proceeds in the guilt phase on theories of both premeditated and felony murder, the underlying felony must be defined. Franklin v. State, 403 So. 2d 975 (Fla. 1981). Here, however, the state charged Occhicone with two counts of premeditated first-degree murder and the court instructed on and the state argued only premeditated murder. The state need not charge and convict of felony murder or any felo…
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Washington v. State, 432 So. 2d 44 (Fla. 1983)…hat its inclusion created any confusion or misled the jury in its deliberations. Since the case was not presented on a theory of felony murder, the judge was not required to instruct the jury on any of the enumerated felonies. See Franklin v. State, 403 So. 2d 975 (Fla.1981). Although we affirm appellant’s conviction, we conclude that his sentence must be reduced to life imprisonment. At the sentencing hearing the state did not produce any further evidence, relying instead on the evidence presented at the tr…
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Taylor v. State, 640 So. 2d 1127 (Fla. 1st DCA 1994)…n of first-degree murder on alternate theories of premeditation and felony murder, the trial court’s failure to instruct on the underlying felony will invalidate the conviction unless the court can determine the error is harmless. Franklin v. State, 403 So. 2d 975, 976 (Fla.1981). Aggravated child abuse is listed as one of the offenses which will support a first-degree murder verdict if a death occurs during the commission, or attempt to commit, aggravated child abuse. § 782.04(1)(a)2, Fla.Stat. (1987); Pugh…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chapman v. California, 386 U.S. 18 (U.S. 1967)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Frazier v. State, 107 So. 2d 16 (Fla. 1958)
- Robles v. State, 188 So. 2d 789 (Fla. 1966)
- Vasil v. Florida, 446 U.S. 967 (U.S. 1980)
- Lee v. Garrison, 446 U.S. 967 (U.S. 1980)
- State v. Wiley Jones, Jr., 377 So. 2d 1163 (Fla. 1979)
- Vasil v. State, 374 So. 2d 465 (Fla. 1979)