JOHN LOWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Lowe was convicted of third degree murder and firearm possession following a jury trial. The appellate court reversed and remanded for a new trial, finding that the trial court committed reversible error by refusing to reinstruct the jury on justifiable and excusable homicide when reinstructing on manslaughter, and by failing to instruct on the limited use of Williams Rule evidence.
The trial court committed reversible error by failing to reinstruct on excusable and justifiable homicide as part of its complete reinstruction on manslaughter, and by failing to instruct the jury on the limited use of collateral crime evidence. The conviction and sentence must be vacated and the case remanded for a new trial.
[1] When a trial court reinstructs a jury on degrees of homicide at the jury's request, a reinstruction on excusable and justifiable homicide is required to provide complete…
[2] A trial court commits reversible error by failing to instruct the jury on the limited use of collateral crime evidence at the close of the evidence.
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Join FLexlaw to unlock all legal intelligence“Florida courts have consistently held that when, at the jury's request, the trial court reinstructs the jury on degrees of homicide, a reinstruction on excusable and justifiable homicide is required in order to provide complete reinstruction on manslaughter.”
Establishes the controlling legal rule that complete reinstruction on manslaughter must include defense instructions on excusable and justifiable homicide.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged by information with second degree murder in the death of his common-law wife and possession of a firearm by a convicted felon. T…
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PER CURIAM.
Appellant was charged by information with second degree murder in the death of his common-law wife and possession of a firearm by a convicted felon. The jury found him guilty of third degree murder as a lesser included crime of second degree murder and guilty as charged for possession of a firearm. Among other points raised, the defendant contends that the trial court erred in refusing a requested rein-struction on justifiable and excusable homicide when it reinstructed on manslaughter, and in refusing to instruct on the limited use of “Williams Rule” evidence. We agree and reverse.
Generally, feasibility and scope of reinstruction of the jury resides within the discretion of the judge. Garcia v. State, 492 So. 2d 360 (Fla.1986); Henry v. State, 359 So. 2d 864 (Fla.1978). A trial judge may properly limit the repetition of charges to those requested. However, the repeated charges should be complete on the subject involved. Hedges v. State, 172 So. 2d 824 (Fla.1965).
Florida courts have consistently held that when, at the jury’s request, the trial court reinstructs the jury on degrees of homicide, a reinstruction on excusable and justifiable homicide is required in order to provide complete reinstruction on manslaughter. Id. at 826; Gross v. State, 397 So. 2d 313, 314 (Fla. 4th DCA), rev. denied, 399 So. 2d 1146 (Fla.1981); Nelson v. State, 371 So. 2d 706 (Fla. 4th DCA 1979), cert. denied, 383 So. 2d 1203 (Fla.1980). The jurors in the case sub judice requested the court to “[pjlease go over the three points constituting second and third degree murder and manslaughter.” Since the jury’s request included reference to manslaughter, the court was compelled to include the defense instructions as well when it rein-structed on manslaughter. See Henry, 359 So. 2d at 867. Thus, failure to give it here constitutes reversible error. Furthermore, we find reversible error in the trial court’s failure at the close of the evidence to instruct the jury on the limited use of collateral crime evidence. Rivers v. State, 425 So. 2d 101 (Fla. 1st DCA 1982), pet. for rev. denied, 436 So. 2d 100 (Fla.1983).
We also note that the trial court’s assessment of costs must be stricken because appellant was denied notice and a hearing as required by Jenkins v. State, 444 So. 2d 947 (Fla.1984).
Accordingly, we conclude that the trial court’s failure to reinstruct the jury on excusable and justifiable homicide, and to instruct on the limited use of “Williams Rule” evidence requires that the conviction and sentence be vacated and that the cause be remanded for a new trial.
REVERSED AND REMANDED.
GLICKSTEIN, DELL and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Rigoberto Garcia v. State, 535 So. 2d 290 (Fla. 3d DCA 1988)…rror in a case in which the defendant was convicted of second-degree murder, Niblack v. State, 451 So. 2d 539 (Fla. 2d DCA 1984), and one in which the defendant, charged with second-degree murder, was convicted of third-degree murder, Lowe v. State, 500 So. 2d 578 (Fla. 4th DCA 1986). In neither case, however, did the court address the issue of harm vel non to the defendant where the ultimate conviction is not for the offense of manslaughter. We now address the issue. In the present case, the jury, by return…
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Avery Simmons v. State, 541 So. 2d 171 (Fla. 4th DCA 1989)…en; but if any instruction is taken all the instructions shall be taken. The reinstruction given would not have been an abuse of discretion if given orally, as it was otherwise complete. See Henry v. State, 359 So. 2d 864 (Fla.1978); Lowe v. State, 500 So. 2d 578 (Fla. 4th DCA 1986). However, the rule with respect to written instructions has been held to require literal compliance. See Chappell v. State, 423 So. 2d 984 (Fla. 3d DCA 1982); Payne v. State, 395 So. 2d 284 (Fla. 3d DCA 1981); Morgan v. State, 37…
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Zarattini v. State, 571 So. 2d 553 (Fla. 4th DCA 1990)…en; but if any instruction is taken all the instructions shall be taken. The reinstruction given would not have been an abuse of discretion if given orally, as it was otherwise complete. See Henry v. State, 359 So. 2d 864 (Fla.1978); Lowe v. State, 500 So. 2d 578 (Fla. 4th DCA 1986). However, the rule with respect to written instructions has been held to require literal compliance. See Chappell v. State, 423 So. 2d 984 (Fla. 3d DCA 1982); Payne v. State, 395 So. 2d 284 (Fla. 3d DCA 1981); Morgan v. [*554] St…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Garcia v. State, 492 So. 2d 360 (Fla. 1986)
- Henry v. State, 359 So. 2d 864 (Fla. 1978)
- Rivers v. State, 425 So. 2d 101 (Fla. 1st DCA 1982)
- Gross v. State, 397 So. 2d 313 (Fla. 4th DCA 1981)
- Nelson v. State, 371 So. 2d 706 (Fla. 4th DCA 1979)