RONNIE DELAFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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It is reversible error for a trial court to refuse a requested jury instruction on excusable homicide when an instruction for manslaughter is given.
The defendant was convicted of manslaughter. The trial judge instructed the jury on second-degree murder, manslaughter, and justifiable homicide, but …
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CAMPBELL, Acting Chief Judge.
Appellant, Ronnie Delaford, seeks review of his conviction of manslaughter. We reverse. The trial judge instructed the jury on second degree murder, manslaughter and justifiable homicide. During a bench conference, defense counsel requested an instruction on excusable homicide. After the jury instructions were given, defense counsel objected to the court’s failure to give an instruction on excusable homicide. The court stated that the request for the excusable homicide instruction was denied because there was no evidence of any excusable homicide.
On appeal, appellant argues that when an instruction is given for manslaughter, it is reversible error for the trial court to refuse to give a requested jury instruction on excusable homicide. We agree.
Manslaughter is a residual offense which excludes justifiable and excusable homicide. § 782.07, Fla.Stat. (1981); Hedges v. State, 172 So. 2d 824 (Fla.1965). In Pouk v. State, 359 So. 2d 929 (Fla. 2d DCA 1978), this court ruled that the instruction on justifiable and excusable homicide must be given “even where there is no evidence to support a finding of justifiable or excusable homicide because manslaughter cannot be adequately defined without such an instruction.” Id. at 930.
Appellee argued that subsequent to Pouk, Florida Rule of Criminal Procedure 3.490 was changed, making it reversible error to give an instruction on a lesser included offense which is not supported by the evidence. Here, appellee contends there is no evidence to support excusable homicide.
Excusable homicide is not a lesser included offense, so Rule of Criminal Procedure 3.490 does not apply in this case. Therefore, the enactment of that rule does not change the law as enunciated in Hedges and Pouk.
For the reasons expressed above, we reverse the trial court and remand for a new trial.
SCHOONOVER and LEHAN, JJ., concur.
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Rojas v. State, 552 So. 2d 914 (Fla. 1989)…truction on the different degrees of murder. However, subsequent cases have applied the same principle to instructions first given to the jury before it retires for deliberation. Brown v. State, 467 So. 2d 323 (Fla. 4th DCA 1985); Delaford v. State, 449 So. 2d 983 (Fla. 2d DCA 1984). The error has been deemed fundamental when it occurs during the original instructions, Alejo v. State, 483 So. 2d 117 (Fla. 2d DCA 1986), but an objection is required to preserve the error when it occurs during a reinstruction. C…
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The Fla. Bar re: Standard Jury Instructions Crim. Cases, 477 So. 2d 985 (Fla. 1985)…e a new definition of culpable negligence more nearly in line with current law. Subsequent to publication, the first “note to judge” was eliminated to make certain that the instruction complied with the rationale of cases such as Delaford, v. State, 449 So. 2d 983 (Fla. 2d DCA 1984). The model charge on murder should be changed on pages xliii and xliv to reflect the new manslaughter instruction (exhibit 2A). 3. In chapter 82-164, Laws of Florida, the legislature amended the theft statute, section 812.014, an…
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Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987)…to fail to give an instruction on justifiable and excusable homicide. See, Alejo v. State, 483 So. 2d 117 (Fla. 2d DCA 1986); Smiddy v. State, 468 So. 2d 466 (Fla. 4th DCA 1985); Brown v. State, 467 So. 2d 323 (Fla. 4th DCA 1985); Delaford v. State, 449 So. 2d 983 (Fla. 2d DCA 1984); Pridgeon v. State, 425 So. 2d 8 (Fla. 1st DCA 1982); Kelsey v. State, 410 So. 2d 988 (Fla. 1st DCA 1982); Gross v. State, 397 So. 2d 313 (Fla. 4th DCA 1981); Lawson v. State, 383 So. 2d 1114 (Fla. 3d DCA 1980). Therefore, we are…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Pouk v. State, 359 So. 2d 929 (Fla. 2d DCA 1978)