STATE OF FLORIDA, PETITIONER,
v.
JOHN CLARENCE FULLER, RESPONDENT; JOHN CLARENCE FULLER, PETITIONER, V. STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that an unlawful display of a firearm charge under section 790.07 is not a lesser included offense of second-degree felony murder, and therefore Fuller's sentence for that crime must be reinstated. The Court also rejected Fuller's argument that the trial court committed fundamental error by failing to instruct the jury on an underlying felony for a third-degree murder conviction.
The Court held that a firearms charge under section 790.07 is not a lesser included offense of second-degree felony murder and reinstated Fuller's sentence for that crime. The Court also held that no fundamental error occurred when the trial court failed to instruct the jury on underlying felonies, as the state did not base its case on proof of an underlying felony and Fuller neither requested nor objected to the omission.
[1] A charge for unlawful display of a firearm during the commission of a felony is not a lesser included offense of second-degree felony murder.
[2] A defendant is precluded from raising the failure to instruct the jury on an underlying felony for a murder charge on appeal absent a finding of fundamental error, especi…
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“a firearms charge pursuant to section 790.07 is not a lesser included offense of first-degree murder. State v. Baker, 456 So. 2d 419 (Fla. 1984). The same reasoning applies here”
Establishes that section 790.07 firearms charges are not lesser included offenses of murder charges, requiring reinstatement of Fuller's firearm sentence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFuller was charged in a two-count information with second-degree felony murder and unlawful display of a firearm during commission of a felony. The tr…
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McDonald, justice.
In a two-count information the state charged Fuller with second-degree felony murder under section 782.04, Florida Statutes (1979), and unlawful display of a firearm during commission of a felony under section 790.07, Florida Statutes (1979). On appeal the district court vacated Fuller’s sentence for display of a firearm, finding that crime to be a lesser included offense of second-degree felony murder. Fuller v. State, 414 So. 2d 264, 266 (Fla. 3d DCA 1982). We recently held that a firearms charge pursuant to section 790.07 is not a lesser included offense of first-degree murder. State v. Baker, 456 So. 2d 419 (Fla. 1984). The same reasoning applies here, and we therefore quash that portion of the district court opinion which vacates Fuller’s second sentence and order that the sentence be reinstated.
We approve the remainder of the district court opinion which holds that the trial court did not commit fundamental error by refusing to instruct the jury on an underlying nonenumerated felony (aggravated assault) of the lesser degree charge of third-degree murder. The jury convicted Fuller of third-degree murder. At trial he neither requested, nor objected to the failure to give, an instruction on or definition of any underlying felony. Absent a finding of fundamental error, he is, therefore, precluded from raising this point on appeal. See Adams v. State, 412 So. 2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982).
Moreover, the state did not base its case upon proof of the commission of an underlying felony. This case is, therefore, distinguishable from Robles v. State, 188 So. 2d 789 (Fla.1966), where the basis of a first-degree murder conviction was an underlying enumerated felony. Here, the state sought to prove second-degree murder. The state had no need to define other felonies not a fundamental part, or necessary for the understanding, of the charges brought. The jury’s verdict of third-degree murder was no more and no less than a jury pardon downward one degree.
We approve in part and quash in part the district court opinion.
It is so ordered.
BOYD, C.J., and ALDERMAN, EHRLICH and SHAW, JJ., concur. ADKINS and OVERTON, JJ., dissent with an opinion.
ADKINS, Justice,
dissenting.
I would follow the views expressed in Bell v. State, 394 So. 2d 979 (Fla.1981).
OVERTON, Justice,
dissenting.
I dissent for the reasons expressed in my dissent in State v. Baker, 456 So. 2d 419 (Fla.1984).
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Cited By
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Wenzel v. State, 459 So. 2d 1086 (Fla. 2d DCA 1984)…the court, defense counsel only stated, “I also object to the third degree murder charge as it was given.” The failure to instruct on any felony underlying the lesser included charge of third degree murder is not fundamental error. State v. Fuller, 455 So. 2d 357 (Fla.1984). Finally, we find no error in the trial court’s refusal to give appellant’s specially requested instruction on justifiable homicide. The proposed instruction was as follows: “If the killing of one party is excusable or justifiable, then…
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Brown v. State, 455 So. 2d 358 (Fla. 1984)…PER CURIAM. Approved. State v. Fuller, 455 So. 2d 357 (Fla.1984). It is so ordered. BOYD, C.J., and OVERTON, ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents.…
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Capers v. State, 455 So. 2d 358 (Fla. 1984)…PER CURIAM. Approved. State v. Fuller, 455 So. 2d 357 (Fla.1984). It is so ordered. BOYD, C.J., and OVERTON, ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents.…
Authorities Cited
- Tison v. Arizona (two cases), 459 U.S. 882 (U.S. 1982)
- State v. Baker, 456 So. 2d 419 (Fla. 1984)
- Adams v. State, 412 So. 2d 850 (Fla. 1982)
- Bell v. State, 394 So. 2d 979 (Fla. 1981)
- Robles v. State, 188 So. 2d 789 (Fla. 1966)
- Fuller v. State, 414 So. 2d 264 (Fla. 3d DCA 1982)
- Perkins v. Fla. Parole & Prob. Comm'n, 414 So. 2d 264 (Fla. 1st DCA 1982)