TELESFORD ALEJO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Telesford Alejo appeals his conviction and sentence for second-degree murder. The appellate court found fundamental error in the trial court's incomplete jury instruction on manslaughter and improper sentence enhancement for use of a weapon, reversing and remanding for a new trial.
The court held that the incomplete manslaughter instruction was fundamental reversible error regardless of defense counsel's failure to object. The court also held that while the trial judge should have specified findings on confession voluntariness, the record was sufficiently clear that the confession was found voluntary. The court noted that the sentence enhancement for use of a weapon was erroneous because the jury verdict did not indicate use of a weapon or include such language.
[1] A jury instruction on manslaughter must include definitions of justifiable and excusable homicide and culpable negligence to be complete and accurate.
[2] Failure to provide a complete jury instruction on a lesser included offense constitutes fundamental error, even if defense counsel did not object at trial.
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“Manslaughter is defined in section 782.-07, Florida Statutes (1983), as a killing by the act, procurement, or culpable negligence of another which is not justifiable or excusable homicide or murder.”
Establishes the statutory definition of manslaughter and the necessity to include definitions of justifiable and excusable homicide in jury instructions
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Join FLexlaw to unlock all legal intelligenceOn April 13, 1984, while drinking with friends, Alejo intervened in a fight between Victor Martinez and another man. During the resulting scuffle, Ale…
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SCHEB, Acting Chief Judge.
Defendant Telesford Alejo appeals his judgment and sentence for second degree murder. We find merit to two of the four points he raises in urging reversal.
Defendant pled not guilty to the charge of second degree murder. At trial, the testimony disclosed that on the afternoon of April 13, 1984, defendant had been drinking with friends. Sometime that evening, he intervened in a fight between Victor Martinez and another man because Martinez was “beating up on” the other man. In the ensuing scuffle, defendant remembered injuring Martinez with his knife. There was conflicting evidence as to whether Martinez threatened defendant with a board before defendant pulled out his knife. Martinez died as a result of multiple stab wounds he received that night.
Following presentation of the evidence and final arguments, the trial judge instructed the jury on the offenses of murder, manslaughter, and aggravated battery. Although defense counsel did not object at trial, defendant now contends that the court committed fundamental error in failing to include the definitions of justifiable and excusable homicide and culpable negligence as part of the instruction on manslaughter. We agree.
Manslaughter is defined in section 782.-07, Florida Statutes (1983), as a killing by the act, procurement, or culpable negligence of another which is not justifiable or excusable homicide or murder. Courts have consistently held that an instruction defining justifiable and excusable homicide is necessary to provide a complete instruction on the crime of manslaughter. Hedges v. State, 172 So. 2d 824 (Fla.1965); Brown v. State, 467 So. 2d 323 (Fla. 4th DCA 1985); Niblack v. State, 451 So. 2d 539 (Fla. 2d DCA 1984); Pouk v. State, 359 So. 2d 929 (Fla. 2d DCA 1978). In addition, our supreme court has said that the term “culpable negligence” must be defined as part of the jury instruction on manslaughter. Campbell v. State, 306 So. 2d 482 (Fla.1975).
We hold that the court’s failure to give a complete manslaughter instruction was reversible error, notwithstanding defense counsel’s failure to make a timely objection. Where, as here, the court gives an instruction on a lesser included offense, it is fundamental that the instruction be sufficiently complete and accurate so that it does not mislead the jury and negate defendant’s theory of defense. Carter v. State, 469 So. 2d 194, 196 (Fla. 2d DCA 1985); Bagley v. State, 119 So. 2d 400 (Fla. 1st DCA 1960). Accordingly, we reverse and remand for a new trial.
Defendant also contends that in denying his motion to suppress, the trial court erred in failing to make a specific finding that defendant’s confession was voluntary. It is preferable for the trial judge to specify his conclusions regarding the voluntariness of a statement where there is conflicting evidence of voluntariness. See, e.g., Rice v. State, 451 So. 2d 548 (Fla. 2d DCA 1984). Nevertheless, since substantial evidence was presented to show that the confession was voluntary and the judge ruled that testimony concerning the confession was admissible, it is sufficiently clear from the record that the judge found the confession was made voluntarily. Hoffman v. State, 474 So. 2d 1178, 1181 (Fla.1985); Antone v. State, 382 So. 2d 1205, 1213 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980).
Although it is not essential to disposition of this appeal, we point out that the trial court erred in enhancing defendant’s sentence for use of a weapon.. As the defendant correctly states, in order for his second degree murder sentence to be enhanced to a life felony for use of a weapon under section 775.087(1), Florida Statutes (1983), the jury must have either found him guilty of a crime involving use of a weapon or indicated such use on a special verdict form. State v. Overfelt, 457 So. 2d 1385 (Fla.1984); Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982). Here, the jury’s verdict neither referred to the use of a weapon nor mentioned the information which charged defendant with use of a knife in the commission of the offense.
We find no merit to defendant’s remaining point on appeal.
Reversed and remanded.
DANAHY and SCHOONOVER, JJ., concur.
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Citator
Cited By (27 total)
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Rojas v. State, 552 So. 2d 914 (Fla. 1989)…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. Castor v. State, 365 So. 2d 701 (Fla.1978). In the Garcia case relied upon below, the defendant, who was convicted of second-degree murder…
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Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987)…d, starting with Hedges v. State, 172 So. 2d 824 (Fla.1965), that when a trial court gives an instruction on manslaughter it is reversible error for the court 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,…
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Stockton v. State, 544 So. 2d 1006 (Fla. 1989)…instruction on manslaughter which omits the definitions of justifiable and excusable homicide is, therefore, incomplete. Hedges v. State, 172 So. 2d 824, 826 (Fla.1965). See also Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987); 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), review denied, 467 So. 2d 1000 (Fla.1985); Delaford v. State, 449 So. 2d 983 (Fla. 2d DCA 1984); Kelsey v. State, 410 So. 2d 988…
Previewing 3 of 27 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Antone v. State, 382 So. 2d 1205 (Fla. 1980)
- Carter v. State, 469 So. 2d 194 (Fla. 2d DCA 1985)
- Murrell Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982)
- Hoffman v. State, 474 So. 2d 1178 (Fla. 1985)
- Lelia Padgett Bagley v. State, 119 So. 2d 400 (Fla. 1st DCA 1960)
- Finney v. Balkcom, 449 U.S. 913 (U.S. 1980)
- Darrigo v. State Comm'n on Jud. Conduct, 449 U.S. 913 (U.S. 1980)
- Pouk v. State, 359 So. 2d 929 (Fla. 2d DCA 1978)