LEE SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Court reversed convictions for second-degree murder and attempted second-degree murder because the trial court gave a jury instruction that was subsequently disapproved by the Florida Supreme Court in Yohn v. State, and the case was a 'pipeline case' subject to the new ruling.
A trial court commits reversible error by giving Florida Standard Jury Instruction (Criminal) 3.04(b) when that instruction has been disapproved by the Florida Supreme Court, even if the disapproval occurs after trial but before final conviction.
[1] A trial court's use of a jury instruction that is subsequently disapproved by the Florida Supreme Court constitutes reversible error in a 'pipeline case' where the convic…
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of second-degree murder and attempted second-degree murder. The trial court instructed the jury using Florida Standard Jury Instru…
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PER CURIAM.
This is an appeal from judgments of conviction and sentences for second-degree murder and attempted second-degree murder. The sole point on appeal is that the trial court erred in giving Florida Standard Jury Instruction (Criminal) 3.04(b), which, since the trial in this cause, has been disapproved by the Florida Supreme Court in Yohn v. State, 476 So. 2d 123 (Fla.1985). We agree and reverse for a new trial.
Because we regard the instant case as a' “pipeline” case, one in which the conviction was not final by trial or appeal at the time Yohn was decided, we find it unnecessary to pass upon the merits of the state’s contention that Yohn should not be applied retroactively; even if the state’s contention is correct, the Yohn ruling would still be applicable to the instant case. See State v. Jones, 485 So. 2d 1283 (Fla.1986); Dougan v. State, 470 So. 2d 697 (Fla.1985), cert. denied, — U.S. -, 106 S.Ct. 1499, 89 L.Ed.2d 900 (1986); Lowe v. Price, 437 So. 2d 142 (Fla.1983); Wheeler v. State, 344 So. 2d 244 (Fla.1977), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979). Applying Yohn, then, to the instant case, we conclude that the trial court committed reversible error in giving the above-stated standard jury instruction. Indeed, the state appears to concede that Yohn, if applicable, requires a reversal in this case.
The final judgments of conviction and sentences under review are, accordingly, reversed and the cause is remanded for a new trial.
Reversed and remanded for a new trial.
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Smith v. State, 539 So. 2d 601 (Fla. 3d DCA 1989)
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State v. Williams, 576 So. 2d 281 (Fla. 1991)…s rule would only be applied prospectively. In the absence of such a pronouncement, all cases involving the same issue that were pending on appeal at the time Ree became final would be subject to reversal under the “pipeline” theory. Smith v. State, 496 So. 2d 983 (Fla. 3d DCA 1986). This change was made in recognition of the fact that many trial judges were under the impression prior to Ree that it was permissible to give the reasons for departure orally at sentencing and to provide a written statement conta…
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Reed v. State, 565 So. 2d 708 (Fla. 5th DCA 1990)…is a “pipeline case,” and, therefore, the question of retroactivity is not implicated. A “pipeline case” is one in which a conviction is not final by trial or appeal at the time a controlling decision is issued by the supreme court. Smith v. State, 496 So. 2d 983 (Fla. 3d DCA 1986). The appellate process is not completed until a mandate is issued. Thibodeau v. Sarasota Memorial Hospital, 449 So. 2d 297 (Fla. 1st DCA 1984). Since the time has not expired for issuance of a mandate in this case, and since appel…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wheeler v. State, 344 So. 2d 244 (Fla. 1977)
- Tura Yohn v. State, 476 So. 2d 123 (Fla. 1985)
- Lowe v. The Honorable Joseph E. Price, 437 So. 2d 142 (Fla. 1983)
- Dougan v. State, 470 So. 2d 697 (Fla. 1985)
- State v. Suarez, 485 So. 2d 1283 (Fla. 1986)
- State v. Jones, 485 So. 2d 1283 (Fla. 1986)
- Hampton v. Wyrick, 440 U.S. 924 (U.S. 1979)
- Lorentzen v. Boston Coll., 440 U.S. 924 (U.S. 1979)