DALE JEROME THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dale Thomas was charged with second-degree murder for fatally stabbing a victim, but the jury convicted him of third-degree murder. On appeal, Thomas argued that since his sole defense at trial was self-defense, there was no underlying felony to support a third-degree murder instruction. The court rejected this argument, holding that the jury instruction on lesser-included offenses is mandatory regardless of the defendant's theory of defense.
The court held that the jury instruction on third-degree murder was mandatory and proper regardless of the defendant's self-defense theory. A defendant cannot benefit from requesting a lesser-included offense instruction and then challenge its propriety when the jury convicts on that lesser charge.
[1] A jury must be instructed on lesser included offenses to allow for the exercise of jury pardon.
[2] A defendant cannot complain on appeal about a jury instruction that was requested by the defense.
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“Obviously third degree murder is a lesser degree offense than second degree murder. Consequently the third degree instruction was mandated, requested and most certainly not objected to by the defense.”
Establishes that the third-degree murder instruction was mandatory under Florida law and that the defendant requested it
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Join FLexlaw to unlock all legal intelligenceAfter a quarrel, the defendant fatally stabbed the victim. He was charged with and tried for second-degree murder. The jury returned a verdict of thir…
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LETTS, Chief Judge.
After a quarrel, the defendant fatally stabbed the victim. He was charged with and tried for second degree murder, but the jury brought back a third degree verdict. The defendant claims on appeal that his sole theory at trial was self defense and therefore there was no underlying felony to sustain a third degree murder instruction which he requested. See Mahaun v. State, 377 So. 2d 1158 (Fla.1979).1
We find this argument without merit, and write on it only to prevent its repetition as a point on appeal in the future.
We are only too familiar with our Supreme Court’s absolute requirement that the jury be instructed on lesser degree and lesser included offenses, Brown v. State, 206 So. 2d 377 (Fla.1968) and Fla.R.Crim.P. 3.490, so that it may exercise the power of “jury pardon.” Lomax v. State, 345 So. 2d 719 (Fla.1977) and State v. Abreau, 363 So. 2d 1063 (Fla.1978). Obviously third degree murder is a lesser degree offense than second degree murder. Consequently the third degree instruction was mandated, requested and most certainly not objected to by the defense.
Pursuant to the instructions submitted, the jury apparently went ahead and exercised its power of jury pardon which the defendant now maintains it could not do.
Both this author and Judge Beranek have, in other cases, expressed considerable puzzlement over the doctrine of jury pardon. See Keenan v. State, 379 So. 2d 147 (Fla. 4th DCA 1980) and Reddick v. State, 380 So. 2d 1330 (Fla. 5th DCA 1980). Reddick is particularly interesting in that the Supreme Court totally ignored our version of Reddick’s, to us, logical criticism of the doctrine and tersely reversed us for the trial court’s failure to instruct on the next immediate lesser included offense. See Reddick v. State, 394 So. 2d 417 (Fla.1981). Accordingly, jury pardon is still a viable doctrine insisted upon by our Supreme Court and we must adhere to it.
We, therefore, reject the heads-I-win-tails-you-lose argument advanced here by the defendant. He had the inalienable right to a third degree murder instruction and would be before us now successfully appealing any absence of same. He submitted the very instruction which he now claims was erroneous and the jury was so charged. Let him not be heard to complain. See Killen v. State, 92 So. 2d 825 (Fla.1957).
We find no merit in the other points on appeal.
AFFIRMED.
BERANEK and GLICKSTEIN, JJ., concur. . Mahaun is cited to us by the public defender but its factual setting makes it far from apropos here. In the instant case the defendant was charged with second degree and convicted of third. In Mahaun he was charged with third degree only.
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Wheeler v. State, 839 So. 2d 770 (Fla. 4th DCA 2003)…er inquiry by the trial court), then she would surely argue that the trial court improperly infringed upon her right to self-representation. Such “heads I win, tails you lose” tactics have previously been rejected by this court. See Thomas v. State, 406 So. 2d 538, 539 (Fla. 4th DGA 1981). As we interpret this record, and notwithstanding her one comment “appoint somebody, I guess,” the trial court did not abuse its discretion in allowing Wheeler to represent herself. See Holland v. State, 773 So. 2d 1065,106…
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Williams v. State, 163 So. 3d 694 (Fla. 4th DCA 2015)…ilure to accept equivocal or uncertain responses could be considered the denial of the right to self-representation. See Wheeler, 839 So. 2d at 774. “Such ‘heads I win, tails you [*699] lose’ tactics” should be rejected. Id. (citing Thomas v. State, 406 So. 2d 538, 539. (Fla. 4th DCA 1981)). While Defendant’s equivocal answers may have been properly considered for whether he was knowingly, intelligently, and voluntarily waiving counsel, the record shows this was not the basis for the court’s decision. The er…
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Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Lomax v. State, 345 So. 2d 719 (Fla. 1977)
- Mahaun v. State, 377 So. 2d 1158 (Fla. 1979)
- Wodford v. State (Fla. 1st DCA 2024)
- Reddick v. State, 394 So. 2d 417 (Fla. 1981)
- Killen v. State, 92 So. 2d 825 (Fla. 1957)
- Keenan v. State, 379 So. 2d 147 (Fla. 4th DCA 1980)
- Reddick v. State, 380 So. 2d 1330 (Fla. 5th DCA 1980)