JAMES OTIS HERRINGTON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reviewed a second-degree murder conviction and held that a trial court must instruct the jury on all lesser degrees of an offense that are supported by evidence, regardless of whether those degrees are alleged in the charging document. The court reversed and remanded for a new trial because the defendant was entitled to an instruction on third-degree murder.
A trial court must give a requested instruction on any lesser degree of an offense that is supported by the evidence, regardless of whether that degree is alleged in the charging document. The failure to instruct on third-degree murder in this case was not harmless error because third-degree murder is only one degree removed from the charged offense.
[1] Failure to instruct a jury on a lesser degree of an offense immediately below the degree of conviction constitutes reversible error per se.
[2] A jury must be instructed on all degrees of an offense charged, including lesser degrees, when the offense is divided into degrees.
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Join FLexlaw to unlock all legal intelligence“If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.”
Establishes the governing rule that lesser degrees must be instructed upon if supported by evidence, regardless of charging document allegations
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Join FLexlaw to unlock all legal intelligenceHerrington was convicted of second-degree murder. He testified that he pointed a pistol at the victim to scare him after the victim threatened him, an…
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[*851] GRIMES, Judge.
We review Herrington v. State, 524 So. 2d 509 (Fla. 4th DCA 1988), because of conflict with Green v. State, 475 So. 2d 235 (Fla.1985). We have jurisdiction based on article V, section 3(b)(3), of the Florida Constitution.
Herrington was charged with and convicted of second-degree murder. On appeal, he complained of the court’s refusal to give his requested instruction on third-degree murder premised on the underlying felony of aggravated assault. In affirming his conviction, the district court of appeal applied a lesser included offense analysis to hold that because the information did not allege the elements of the category two lesser offense of third-degree murder, Her-rington was not entitled to an instruction on that offense.*
In Green v. State, 475 So. 2d 235 (Fla.1985), we held that where a defendant is charged with first-degree murder the judge must give his requested instruction on third-degree murder if there is evidence that the killing was done during the commission of one of the underlying felonies of third-degree murder. The Court emphasized the wording of Florida Rule of Criminal Procedure 3.490, which reads as follows:
RULE 3.490 DETERMINATION OF DEGREE OF OFFENSE
If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.
Thus, it is that in the case of degree crimes, requested instructions on all lesser degrees that are supported by the evidence must be given regardless of the allegations of the charging document.
Herrington testified that the killing occurred after the victim had threatened him. He said he pointed a pistol at the victim to scare him and that it accidentally misfired. These facts would support a conviction for third-degree murder premised upon the underlying felony of aggravated assault. Consequently, the instruction should have been given.
Even though the court gave an instruction on manslaughter, which, like third-degree murder, is a second-degree felony, the failure to instruct on third-degree murder cannot be deemed harmless error because third-degree murder is only one step removed from the crime charged in the information. Dicicco v. State, 496 So. 2d 864 (Fla. 2d DCA 1986); Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA), review denied, 408 So. 2d 1095 (Fla.1981); Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980).
We disapprove the opinion of the court below and remand the case with directions to vacate Herrington’s conviction and grant him a new trial.
It is so ordered.
EHRLICH, C.J., and OVERTON, MCDONALD, BARKETT and KOGAN, JJ., concur. SHAW, J., concurs in result only.
*
There is no doubt that when the schedule of lesser included offenses was proposed in 1980 the Committee on Standard Jury Instructions in Criminal Cases intended that degree crimes be treated as other lesser included offenses. Thus, unless the elements of the lesser - crime were necessarily included in the greater, there would be no neéd to instruct on the lesser crime unless its elements were alleged in the information and supported by the evidence. See Comment on Schedule of Lesser Included Offenses (page 261) and order and opinion of Supreme Court of Florida adopting Florida Standard Jury Instructions in Criminal Cases, Nos. 57,734 and 58,799 (April 16, 1981) (page v), both of which are reprinted in the Florida Standard Jury Instructions in Criminal Cases. However, the language in Florida Rule of Criminal Procedure 3.490 dealing with degree crimes was not sufficiently amended to permit this result. Linehan v. State, 442 So. 2d 244, 256 (Fla. 2d DCA 1983) (Grimes, J., concurring), approved, 476 So. 2d 1262 (Fla.1985).
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Citator
Cited By (11 total)
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Pope v. State, 679 So. 2d 710 (Fla. 1996)…urder instruction for two reasons. First, the facts of this case do not support such an instruction. The court is not required to give requested instructions on lesser degrees of murder unless they are supported by the evidence. Herrington v. State, 538 So. 2d 850, 851 (Fla.1989). Second, third-degree murder is two steps removed from the crime for which Pope was convicted. Any error is presumed harmless because “[w]here the omitted instruction relates to an offense two or more steps removed ... reviewing cour…
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Daugherty v. State, 211 So. 3d 29 (Fla. 2017)…constituted fundamental error. However, this Court has previously concluded that third-degree fel [*38] ony murder—which, like manslaughter, is also a second-degree felony—is also one step removed from second-degree murder. See Herrington v. State, 538 So. 2d 850, 851 (Fla. 1989). “Although third-degree felony murder is not a necessarily included offense of first-degree murder, it is, under certain circumstances and evidence, a proper permissive lesser included offense of first-degree murder, requiring a jur…
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McCloud v. State, 209 So. 3d 534 (Fla. 2017)…mery constituted fundamental error. However, this Court has previously concluded that third-degree felony murder— which, like manslaughter, is also a second-degree felony — is also one step removed from second-degree murder. See Herrington v. State, 538 So. 2d 850, 851 (Fla. 1989). “Although third-degree felony murder is not a necessarily included offense of first-degree murder, it is, under certain circumstances and evidence, a proper permissive lesser included offense of first-degree murder, requiring a jur…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Linehan v. State, 476 So. 2d 1262 (Fla. 1985)
- Linehan v. State, 442 So. 2d 244 (Fla. 2d DCA 1983)
- Green v. State, 475 So. 2d 235 (Fla. 1985)
- Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980)
- Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA 1981)
- Dicicco v. State, 496 So. 2d 864 (Fla. 2d DCA 1986)
- Herrington v. State, 524 So. 2d 509 (Fla. 4th DCA 1988)