WILLIAM TORRENCE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1991-02-12
No. 90-96
Before HUBBART, BASKIN and GODERICH, JJ.
574 So. 2d 1188 Florida District Court of Appeal, Third District (1991) Positive Treatment
Cited by 2 cases

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Synopsis

William Torrence appealed his convictions for manslaughter with a firearm and unlawful possession of a firearm during commission of a felony. The court affirmed the manslaughter conviction but reversed the firearm possession conviction as violating double jeopardy rights under controlling precedent.


Holding

The jury instruction on reasonable doubt did not constitute error as it clearly conveyed that acquittal was required if the jury entertained a reasonable doubt about guilt. However, the firearm possession conviction violated double jeopardy rights under Carawan v. State, and the conviction must be reversed.


Headnotes

[1] A jury instruction stating "If you have a reasonable doubt, you should find the defendant not guilty" does not improperly suggest that acquittal is discretionary when rea…

[2] A guilty verdict is required if the jury has no reasonable doubt concerning the defendant's guilt.

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Key Quotes

“If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty.”

The jury instruction at issue; the court upheld this instruction as adequately conveying the reasonable doubt standard

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Facts & Procedural History

William Torrence was convicted of manslaughter with a firearm and unlawful possession of a firearm during the commission of a felony. The trial court …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the defendant William Torrence from final judgments of conviction and sentences for (1) manslaughter with a firearm, and (2) unlawful possession of a firearm during the commission of a felony. We affirm in part and reverse in part.

First, we conclude that the trial court did not, as urged, commit any error in instructing the jury in accord with Flor-ida Standard Jury Instruction (Criminal) 2.03, that:

“If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty.”

In our view, this instruction clearly informs the jury that a not guilty verdict is required if the jury has a reasonable doubt concerning the guilt of the defendant — and that, conversely, a guilty verdict is required if the jury has no reasonable doubt concerning the guilt of the defendant. We cannot agree that the use of the word “should,” rather than “must,” in this instruction conveys the impression that it is discretionary with the jury whether to acquit if they have a reasonable doubt concerning the defendant’s guilt. To the contrary, the instruction gives the jury only two choices depending on whether they have such a reasonable doubt and conveys the clear meaning that an acquittal is the jury’s only choice if they entertain such a reasonable doubt. Moreover, when read in context with the entire standard jury instruction from which the portion under review is taken, it is clear that the jury was informed in unmistakable terms that an acquittal was required if the jury had a reasonable doubt concerning the defendant’s guilt. United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912-13, 44 L.Ed.2d 489 (1975); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368, 373-74 (1973).

Second, the state properly confesses error that it was a violation of the defendant’s double jeopardy rights under Carawan v. State, 515 So. 2d 161 (Fla.1987) to convict the defendant on the firearm charge. Although Carawan has been superseded by Section 775.021(4), Florida Statutes (1989), the offenses in this case took place prior to the effective date of the statute, and, accordingly, the said statute is inapplicable to this case. State v. Smith, 547 So. 2d 613 (Fla.1989); Hollinger v. State, 564 So. 2d 262 (Fla. 3d DCA 1990); Wright v. State, 561 So. 2d 1197 (Fla. 3d DCA 1990); Stanley v. State, 560 So. 2d 1269 (Fla. 3d DCA 1990); Salazar v. State, 560 So. 2d 1207 (Fla. 3d DCA), cause dismissed, 567 So. 2d 435 (Fla.1990); Jones v. State, 547 So. 2d 1278 (Fla. 3d DCA 1990); Gonzalez v. State, 543 So. 2d 386 (Fla. 3d DCA), rev. denied, 549 So. 2d 1014 (Fla.1989).

The final judgment of conviction and sentence for manslaughter is affirmed; the final judgment of conviction and sentence for unlawful possession of a firearm during the commission of a felony is reversed and the cause is remanded to the trial court with directions to vacate such conviction and sentence.

Affirmed in part; reversed in part and remanded.


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Citator

Cited By

  • Brown v. State, 127 So. 3d 551 (Fla. 4th DCA 2012)
    …[*552] PER CURIAM. Affirmed. See Torrence v. State, 574 So. 2d 1188 (Fla. 3d DCA 1991). MAY, C.J., WARNER and POLEN, JJ., concur.…

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