GLENN EVANS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Glenn Evans was convicted of attempted second degree murder with a firearm. The Fourth District Court of Appeal reversed and remanded because the trial court's jury instruction on excusable homicide was ambiguous and inaccurately suggested that use of a dangerous weapon automatically precluded an excusable homicide finding, when the weapon restriction applies only to the sudden combat exception.
The instruction was erroneous and misleading. The restriction on use of dangerous weapons in excusable homicide applies only to the sudden combat exception, not to all excusable homicide scenarios. The conviction is reversed and the case is remanded for a new trial.
[1] A jury instruction on excusable homicide is erroneous if it inaccurately suggests that the use of a dangerous weapon automatically precludes a finding of excusable homici…
[2] A killing committed in sudden combat is not excusable if a dangerous weapon was used.
Previewing 2 of 3 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“The killing of a human being is excusable if committed by accident and misfortune.”
Establishes the basic standard for excusable homicide under Florida law.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGlenn Evans was charged with attempted second degree murder with a firearm. The case involved a shooting or attempted shooting incident. The defendant…
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PER CURIAM.
The defendant, Glenn Evans, appeals a conviction of attempted second degree murder with a firearm. Evans argues one point which we find to be dispositive. The trial court gave the following instruction to the jury on excusable homicide:
The killing of a human being is excusable and therefore lawful when committed by accident and misfortune in doing any lawful act, by lawful means, with usual and ordinary caution and without any unlawful intent, or by accident or misfortune in the heat of passion upon any sudden and sufficient provocation, or upon a sudden combat without dangerous weapon being used and not done in a cruel and unusual manner. * * * * * *
However, the defedant (sic) cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously defined those terms to you.
An issue in this case is whether the shooting or the attempt (sic) shooting was excusable. The killing of a human being is excusable if committed by accident and misfortune.
In order to find the killing was committed by accident and misfortune you must find the defendant was doing a lawful act, by lawful means, and with usual care, and acting without any unlawful intent, or in the heat of passion brought on by a sudden provocation sufficient to produce in the mind of an ordinary person the highest degree of anger, rage or resentment that is so intense as to overcome the use of ordinary judgment, thereby rendering a normal person incapable of reflection, or engaged in a sudden combat.
However, if a dangerous weapon was used in the combat or the killing was done in a cruel or unusual manner, the killing is not excusable. (Emphasis added).
Evans argues that the last paragraph quoted above inaccurately suggests that if a weapon is used then a killing cannot be excusable, when in fact the use of a dangerous weapon only modifies the instruction on sudden combat. The Fourth District has previously ruled on this issue in Hoffert v. State, 559 So. 2d 1246 (Fla. 4th DCA 1990.) Based on Hoffert we reverse.
REVERSED AND REMANDED.
HERSEY, C.J., and DOWNEY and WALDEN, JJ., concur.
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Citator
Cited By
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Bell v. State, 965 So. 2d 48 (Fla. 2007)…his issue. Each of the cases cited by Bell is distinguishable. See, e.g., Cummings v. State, 648 So. 2d 166, 167 (Fla. 4th DCA 1994) (jury instruction read in such a way that dangerous weapon clause modified all three circumstances); Evans v. State, 572 So. 2d 20, 20 (Fla. 4th DCA 1990) (same). Bell asserts that appellate counsel was ineffective for failing to argue on direct appeal that the prosecutor’s comments during voir dire were reversible error. The prosecutor stated during voir dire that “no matter…
Authorities Cited
- Hoffert v. State, 559 So. 2d 1246 (Fla. 4th DCA 1990)