CANDACE JEAN SCHUCK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Candace Schuck was convicted of manslaughter for shooting her ex-boyfriend, claiming the shooting was accidental. The Fourth District Court of Appeal reversed and remanded for a new trial, finding that the jury instruction on excusable homicide was fundamentally misleading because it suggested that killings committed with a deadly weapon could never be excusable.
The court held that the phrase "without any weapon being used" in the excusable homicide instruction is inherently misleading because it suggests that a killing committed with a deadly weapon is never excusable. Giving such a misleading jury instruction constitutes both fundamental and reversible error, and the conviction must be reversed and remanded for a new trial.
[1] A jury instruction that suggests an excusable homicide defense is unavailable if a dangerous weapon is used is misleading.
[2] Giving a misleading jury instruction constitutes fundamental and reversible error.
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Join FLexlaw to unlock all legal intelligence“The killing of a human being is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel and unusual manner.”
The standard jury instruction on excusable homicide that the trial court gave, containing the phrase "without any dangerous weapon being used" that the appellate court found misleading.
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Join FLexlaw to unlock all legal intelligenceAppellant Schuck was charged with and convicted of manslaughter under Florida Statute section 782.07 for shooting and killing her ex-boyfriend. Her de…
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POLEN, Judge.
Appellant raises three points on appeal. We affirm points I and III. As to point II, we reverse and remand for a new trial.
Appellant was charged with and convicted of manslaughter in violation of section 782.07, Florida Statutes (1987) for shooting and killing her ex-boyfriend. Her defense was that the shooting was accidental. The trial court gave the standard short form instruction on excusable homicide in accordance with the Florida Standard Jury Instructions in Criminal Cases. The instruction at page 61 provides in relevant part:
EXCUSABLE HOMICIDE
The killing of a human being is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel and unusual manner. The defense did not object to the instruction. Therefore, in order for appellant to prevail, we must conclude that the misleading nature of the instruction constituted fundamental error. Treadway v. State, 534 So. 2d 825 (Fla. 4th DCA 1988).
Appellant maintains that the phrase, “without any weapon being used,” is inherently misleading, because it suggests that a killing committed with a deadly weapon is never excusable. Our sister courts have construed the short form excusable homicide instruction to be misleading because it suggests that an excusable homicide defense is unavailable if a dangerous weapon is used. Smith v. State, 539 So. 2d 514 (Fla. 2d DCA 1989); Kingery v. State, 523 So. 2d 1199 (Fla. 1st DCA 1988). We agree.
It is well settled that giving a misleading jury instruction constitutes both fundamental and reversible error. Doyle v. State, 483 So. 2d 89 (Fla. 4th DCA 1986), appeal after remand, 513 So. 2d 188 (Fla. 4th DCA 1987), review denied, 520 So. 2d 583 (Fla. 1988); Christian v. State, 272 So. 2d 852 (Fla. 4th DCA 1973), cert. denied, 275 So. 2d 544 (Fla.1973). Accordingly, appellant’s conviction and sentence is reversed and this case is remanded for a new trial.
DELL, J., concurs.
ANSTEAD, J., dissents with opinion.
ANSTEAD, Judge,
dissenting.
I cannot agree that fundamental error was committed. The trial transcript reflects that the issue in this case was clearly drawn and presented to the jury. The state asserted that the appellant was guilty of manslaughter by culpable negligence in pointing a loaded weapon at the deceased and pulling the trigger. And, contrary to the state’s claim of recklessness, appellant claimed that the shooting was an accident involving simple negligence at most. The state did not contend that because a dangerous weapon was involved, the appellant could not claim excusable homicide. The jury resolved the reckless versus accident issue against appellant. I fail to see how the jury instruction in question constituted fundamental error.
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State v. Schuck, 573 So. 2d 335 (Fla. 1991)…EHRLICH, Senior Justice. We have for review Schuck v. State, 556 So. 2d 1163 (Fla. 4th DCA 1990), which expressly and directly conflicts with the decision of this Court in State v. Smith, 573 So. 2d 306 (Fla.1990). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Schuck was charged with and convicted of manslaughter in…
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Spector v. State, 593 So. 2d 565 (Fla. 4th DCA 1992)…t forth an amended version of the long-form instruction. The instant trial took place while the Smith case was pending before the Florida supreme court. At the charge conference, defense counsel, relying on this court’s decision in Schuck v. State, 556 So. 2d 1163 (Fla. 4th DCA 1990), decision quashed, 573 So. 2d 335 (Fla.1991), maintained that the short-form instruction on excusable homicide was misleading and should not be used. Relying on Smith v. State, 539 So. 2d 514 (Fla. 2d DCA 1989), and Kingery v. St…
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Gibson v. State, 568 So. 2d 977 (Fla. 1st DCA 1990)…, 500 So. 2d 1367 (Fla. 1st DCA 1987), approved in Rojas v. State, 552 So. 2d 914 (Fla.1989). An improper excusable homi [*979] cide instruction may thus be reviewed in this context even though no objection was interposed below. See Schuck v. State, 556 So. 2d 1163 (Fla. 4th DCA 1990); Smith, supra. While appellant was not convicted of manslaughter, he was convicted of second degree murder, and since manslaughter is the next lesser instructed offense the improper instruction may not be deemed harmless as it mi…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kingery v. State, 523 So. 2d 1199 (Fla. 1st DCA 1988)
- Treadway v. State, 534 So. 2d 825 (Fla. 4th DCA 1988)
- Smith v. State, 539 So. 2d 514 (Fla. 2d DCA 1989)
- Christian v. State, 272 So. 2d 852 (Fla. 4th DCA 1973)
- Doyle v. State, 483 So. 2d 89 (Fla. 4th DCA 1986)
- Hernandez v. Metro. Dade Cnty. & Puritan Ins. Co., 483 So. 2d 89 (Fla. 3d DCA 1986)
- Doyle v. State, 513 So. 2d 188 (Fla. 4th DCA 1987)
- Mittel v. Kahn, 275 So. 2d 544 (Fla. 1973)
- State v. Christian, 275 So. 2d 544 (Fla. 1973)