NICHOLAS VANCE FURR, 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.
Nicholas Furr was convicted of first-degree felony murder and armed robbery and sentenced to consecutive life and fifty-year terms. The appellate court reversed and remanded for a new trial because the trial court failed to instruct the jury on the lesser-included offense of second-degree depraved-mind murder, despite evidence supporting such an instruction.
Yes. The trial court erred by failing to instruct the jury on second-degree depraved-mind murder. In prosecutions for first-degree murder, courts must instruct on the charged offense and all lesser-degree offenses when evidence supports a finding of guilt. The failure to give this instruction constitutes reversible error, not harmless error, and requires a new trial on the first-degree murder charge.
[1] A trial court must instruct the jury on lesser included offenses if the evidence supports a finding of guilt for that offense.
[2] Evidence of spraying shots around a room with people present, one of whom was struck and killed, may support a jury finding of second-degree murder.
Previewing 2 of 5 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“In a prosecution for first degree murder the trial court must instruct on the offense charged and on all offenses that are lesser in degree if there is evidence in the record to support a finding of guilt for that offense.”
Establishes the mandatory nature of lesser-included offense instructions under Florida Criminal Procedure Rule 3.490.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant entered an apartment with a loaded rifle and sprayed shots around a room containing several people known to him. One shot struck and killed …
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 Right To Testify cases and more on FLexlaw
DANAHY, Judge.
Appellant was indicted for first degree (felony) murder (Count 1) and armed rob; bery (Count 2). Following a jury trial, he was convicted as charged and sentenced to consecutive terms of life imprisonment without parole for twenty-five years as to Count 1 and fifty years imprisonment as to Count 2. The trial court subsequently denied appellant’s motion for new trial but granted his motion to correct sentence and vacated the judgment and sentence as to Count 2, the underlying felony. We reverse.
Appellant first contends that the trial judge erred by failing to make inquiry following his statement, first given when he appeared before the court for sentencing, that he had been denied his right to testify. We find this contention to be without merit. Cutter v. State, 460 So. 2d 538 (Fla. 2d DCA 1984).
Appellant’s second contention is that the trial court erred by failing to instruct the jury on second degree (depraved mind) murder. We agree. In a prosecution for first degree murder the trial court must instruct on the offense charged and on all offenses that are lesser in degree if there is evidence in the record to support a finding of guilt for that offense. Fla.R. Crim.P. 3.490. Obviously, second degree (depraved mind) murder is an offense lesser in degree than first degree (felony) murder under section 782.04, Florida Statutes (1983). In the case before us the evidence adduced at trial demonstrated that appellant entered the apartment with a loaded rifle and, while inside, sprayed shots around a room in which several people known to him were located. One of the shots struck the victim. Under these facts, the jury, if so instructed, could have exercised its inherent power of pardon and found appellant guilty of “an act imminently dangerous to another and evincing a depraved mind regardless of human life,” i.e., that appellant’s actions fit the statutory definition of second degree (depraved mind) murder provided in section 782.04(2), Florida Statutes (1983).
Consequently, we conclude that the evidence in the case before us warrants submission of an instruction permitting the jury to find appellant guilty of second degree (depraved mind) murder, the degree of offense immediately less than the degree of conviction. Because such an instruction was requested and mandated by rule 3.490, the trial court’s failure to give the instruc tion is reversible and not harmless error. Therefore, appellant is entitled to a new trial on first degree (felony) murder. Linehan v. State, 442 So. 2d 244 (Fla. 2d DCA 1983). See State v. Abreau, 363 So. 2d 1063 (Fla.1978); Johnson v. State, 423 So. 2d 614 (Fla. 1st DCA 1982); Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980).
On retrial for first degree (felony) murder, the conviction for armed robbery (the underlying felony) shall be reinstated. On retrial, should appellant be acquitted of first degree (felony) murder, he shall be sentenced on the armed robbery conviction. However, if, on retrial, appellant is again convicted on first degree (felony) murder, he shall be sentenced on that conviction and, as we have held in Enmund v. State, 459 So. 2d 1160 (Fla. 2d DCA 1984), and Dixon v. State, 463 So. 2d 342 (Fla. 2d DCA 1985), the conviction for armed robbery shall be vacated.1
REVERSED AND REMANDED FOR A NEW TRIAL WITH DIRECTIONS.
GRIMES, A.C.J., and SCHOONOVER, J., concur. . We note that the supreme court has accepted jurisdiction to review the question we first certified in Enmund, and again in Dixon. Dixon v. State, 463 So. 2d 342 (Fla. 2d DCA 1985), review granted, No. 66,405 (Fla. Jan. 21, 1985); Enmund v. State, 459 So. 2d 1160 (Fla. 2d DCA), review granted, No. 66,264 (Fla. Dec. 12, 1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Scurry v. State, 521 So. 2d 1077 (Fla. 1988)…olding that, although second-degree murder is a lesser included offense of first-degree felony murder, it is not a necessarily lesser included offense and was not applicable under the circumstances of this case, citing its decision in Furr v. State, 464 So. 2d 693 (Fla. 2d DCA 1985). In Linehan v. State, 476 So. 2d 1262 (Fla.1985), this Court determined that “second-degree murder is a necessarily included offense of first-degree premeditated and felony murder.” Id. at 1265 (emphasis added). We also directed…
-
State v. Furr, 493 So. 2d 432 (Fla. 1986)…PER CURIAM. This cause is before us on a petition to review Furr v. State, 464 So. 2d 693 (Fla. 2d DCA 1985), in which the district court held (1) that second-degree depraved mind murder is a lesser included offense of first-degree felony murder and (2) that the respondent, Furr, cannot be convicted for first-degree felony murder and the…
-
Scurry v. State, 506 So. 2d 4 (Fla. 2d DCA 1987)…eme court did not intend that a second degree murder instruction is required in every first degree felony murder charge without consideration of evidence to support it. The supreme court considered and approved this court’s holding in Furr v. State, 464 So. 2d 693 (Fla. 2d DCA 1985), that second degree depraved mind murder is a lesser included offense of first degree murder and that a requested instruction on second degree murder must be given when supported by the evidence. The state contends that defense c…
Authorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Linehan v. State, 442 So. 2d 244 (Fla. 2d DCA 1983)
- Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980)
- Cutter v. State, 460 So. 2d 538 (Fla. 2d DCA 1984)
- Enmund v. State, 459 So. 2d 1160 (Fla. 2d DCA 1984)
- Harrison W. Johnson v. State, 423 So. 2d 614 (Fla. 1st DCA 1982)
- Dixon v. State, 463 So. 2d 342 (Fla. 2d DCA 1985)