TIMOTHY ROGER MOYER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Timothy Moyer appeals his convictions for attempted manslaughter with a weapon and engaging in a criminal offense with a weapon. The court affirms the attempted manslaughter conviction but reverses the conviction for engaging in a criminal offense with a weapon, finding the two convictions constitute improper double counting where the weapon use merely elevated the attempted manslaughter charge.
The trial court did not err in refusing the justifiable use of deadly force instruction where Moyer's alibi defense was mutually exclusive with self-defense, and the shorter instruction on excusable and justifiable homicide was sufficient. A defendant cannot be convicted of both attempted manslaughter with a weapon and engaging in a criminal offense with a weapon where the weapon use was used to elevate the manslaughter charge to a second degree felony.
[1] A trial court is not required to instruct the jury on justifiable use of deadly force when the defendant's sole defense is an alibi, as these defenses are mutually exclus…
[2] A conviction for attempted manslaughter with a weapon precludes a separate conviction for engaging in a criminal offense with a weapon when that offense was used to recla…
Previewing 2 of 5 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“inconsistent defenses are allowable in criminal cases where the proof of one does not necessarily disprove the other... But, in this case the defenses are mutually exclusive.”
Establishes the distinction between permissible inconsistent defenses and impermissible mutually exclusive defenses that cannot both be pursued.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTommy Williamson and friends were outside a drinking establishment repairing a flat tire when a stranger approached girls in their group and became un…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Mutually Exclusive Defenses cases and more on FLexlaw
HARRIS, Judge.
Appellant, Timothy Roger Moyer (Moyer), appeals his convictions for attempted manslaughter with a weapon and engaging in a criminal offense with a weapon.1 We affirm the attempted manslaughter conviction but reverse the conviction for engaging in a criminal offense with a weapon.
Tommy Williamson and some friends were outside a drinking establishment repairing a flat tire. Some girls in the group were approached by a stranger who became upset and unruly when he was not welcomed by them. Tommy walked over to where the girls were and attempted to drive away the intruder. The intruder resisted, and Tommy was stabbed by a sharp knife with a thin blade and severely injured.2 The intruder fled.
Although Moyer was identified by four witnesses as the one who committed the act, his defense was that he was miles away from the scene with a young woman at the time of the incident. While identity is not an issue in this appeal, the fact that Moyer claimed alibi as a defense is material to our consideration because he claims the court erred in not giving his requested instruction of justifiable use of deadly force when it instructed on manslaughter. The court did give the short instruction on excusable and justifiable homicide as a part of the manslaughter charge, but refused to instruct on justifiable use of deadly force because it was inconsistent with Moyer’s alibi defense. How could he not be there and yet justifiably have used deadly force? It is true that inconsistent defenses are allowable in criminal cases where the proof of one does not necessarily disprove the other. Mills v. State, 490 So. 2d 204 (Fla.3d DCA 1986), rev. denied 494 So. 2d 1153 (1986). But, in this case the defenses are mutually exclusive.
The Florida Supreme Court has held that the trial court must define excusable and justifiable homicide in order to make the manslaughter instruction legally adequate. Rojas v. State, 552 So. 2d 914 (Fla.1989). This was done in the present case. The Rojas court refused to rule on whether the trial court must also give the longer instruction on justifiable or excusable homicide where the evidence in the case does not warrant it. This is the issue at bar. Although there was evidence of an altercation at the time Tommy Williamson was stabbed, Moyer elected to forego self defense and to rely on an alibi defense. There was therefore no “issue in this case ... [of] self defense” which would warrant a charge of justifiable use of deadly force.
As to the second conviction, since Moyer was convicted of attempted manslaughter with a weapon, he cannot also be convicted of engaging in a criminal offense with a weapon where that offense was used to reclassify the attempted manslaughter to a second degree felony. McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988). Accordingly the conviction for engaging in a criminal offense with a weapon is reversed. State v. Barton, 523 So. 2d 152 (Fla.1988). We have determined that the elimination of points on the score-sheet for this conviction does not affect the recommended guidelines sentence and, therefore, resentencing is not required. We remand, however, for the correction of the judgment.
AFFIRMED in part; REVERSED in part; and REMANDED.
COWART and PETERSON, JJ., concur. . He also appeals the imposition of costs which we find without merit.
. He was paralyzed from the wound to the neck which damaged his spinal cord.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Martinez v. State, 981 So. 2d 449 (Fla. 2008)…inal defendant to offer multiple defenses “where the proof of one does not necessarily disprove the other.” Phillips v. State, 874 So. 2d 705, 707 (Fla. 1st DCA 2004); see also Keyes v. State, 804 So. 2d 373, 375 (Fla. 4th DCA 2001); Moyer v. State, 558 So. 2d 1045, 1046 (Fla. 5th DCA 1990). Under the law of self-defense, once a defendant provides evidence of self-defense, the State must then go forward to demonstrate beyond a reasonable doubt that the use of force by the defendant was not justified. See Fowl…
-
Wright v. State, 681 So. 2d 852 (Fla. 5th DCA 1996)…d not remember doing so. Wright, on the other hand, denied under oath resisting Officers Bianci and Cunningham with violence. A criminal defendant may present inconsistent defenses as long as proof of one does not disprove the other. Moyer v. State, 558 So. 2d 1045,1046 (Fla. 5th DCA), rev. denied, 574 So. 2d 142 (Fla.1990). Johnson comports with this rule. A jury’s determination that the defendant acted in self-defense would in no way disprove his alleged lack of memory. Conversely, Wright’s alternative theo…
-
Heriberto Vila v. State, 74 So. 3d 1110 (Fla. 5th DCA 2011)…cident bars an instruction on self[-]defense or defense of another.”); Roberts v. State, 753 So. 2d 136, 137 (Fla. 2d DCA 2000) (affirming denial of instruction where defendant failed to present any evidence to support self-defense); Moyer v. State, 558 So. 2d 1045 (Fla. 5th DCA 1990) (affirming denial of justification jury instruction because it was inconsistent with alibi defense). None of those circumstances are present here.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Barton, 523 So. 2d 152 (Fla. 1988)
- Rojas v. State, 552 So. 2d 914 (Fla. 1989)
- Webster F. McKINNON v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988)
- Mills v. State, 490 So. 2d 204 (Fla. 3d DCA 1986)