CLAUDE JEROME HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Claude Jerome Harris appeals his conviction for attempted first-degree premeditated murder and second-degree murder, challenging jury instructions, sentencing departure, indictment amendment procedures, and restitution determinations. The court affirmed the convictions and most sentencing issues, but remanded for judicial determination of restitution amounts.
The court affirmed the jury instructions as invited error, affirmed the sentencing departure as supported by evidence, affirmed the indictment deletion as a permitted withdrawal rather than amendment, affirmed the cost assessments, but remanded for judicial determination of restitution amounts rather than delegation to the probation officer.
[1] A defendant waives any error in jury instructions by specifically requesting those instructions at trial.
[2] Sentencing guideline departures are permissible when supported by evidence of knowingly creating a great risk of death to many persons or an escalating pattern of crimina…
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“deletion from an indictment of allegations unnecessary to the offense, or the withdrawal from the jury's consideration of one of several offenses initially charged, does not constitute a forbidden amendment”
Establishes that removing charges from indictment is not an improper amendment if allegations are unnecessary
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Join FLexlaw to unlock all legal intelligenceHarris was convicted by jury of one count of attempted first-degree premeditated murder with a firearm and one count of second-degree murder with a fi…
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ZEHMER, Judge.
Claude Jerome Harris appeals a final judgment entered on a jury verdict adjudicating him guilty of one count of attempted first degree premeditated murder with a firearm and one count of second degree murder with a firearm. Harris was given a departure sentence of two terms of life imprisonment, to run concurrently.
Harris first contends that the trial court erred in (1) instructing the jury on manslaughter without defining justifiable homicide and (2) instructing the jury using the short-form excusable homicide instruction. The record indicates that Harris specifically requested the jury instructions that he now claims are erroneous and misleading, so any error in these jury instructions was invited and thus waived. State v. Smith, 573 So. 2d 306 (Fla.1990); Armstrong v. State, 566 So. 2d 943 (Fla. 5th DCA 1990).
Harris next contends that the trial court erred in departing from the sentencing guidelines because the departure reasons were not supported by the evidence. We affirm the sentence because the two stated reasons, knowingly creating a great risk of death to many persons and his escalating pattern of criminal conduct, are supported by the record.
Harris next contends that after the state announced its intention not to proceed on the portion of the grand jury’s indictment that charged him with felony murder, the trial court erred in deleting that theory from the indictment without obtaining further grand jury action. We affirm because the trial’s court’s action did not amount to a prohibited amendment of the indictment. Huene v. State, 570 So. 2d 1031, 1032 (Fla. 1st DCA 1990) (“deletion from an indictment of allegations unnecessary to the offense, or the withdrawal from the jury’s consideration of one of several offenses initially charged, does not constitute a forbidden amendment”). See also United States v. Watchmaker, 761 F. 2d 1459, reh. denied, 766 F. 2d 1493 (11th Cir.1985), cert. denied, sub nom. Harrell v. United States, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 917 (1986); United States v. Diaz, 690 F. 2d 1352 (11th Cir.1982).
Finally, Harris contends that the lower court (1) erred in imposing costs pursuant to section 27.3455, Florida Statutes (1986), section 960.20, Florida Statutes (1985), section 943.25, Florida Statutes (Supp.1986), and section 943.25(13), Florida Statutes (1987), without giving him prior notice and an opportunity to object to the assessment, and (2) erred in delegating the determination of the amount of restitution to the probation and parole officer. We affirm the imposition of costs on the authority of State v. Beasley, 580 So. 2d 139 (Fla.1991). With respect to the restitution order, we agree with the state’s confession of error and remand for a judicial determination of the amount of restitution owed. See Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
SMITH and NIMMONS, JJ., concur.
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Cited By
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Hall v. State, 677 So. 2d 1353 (Fla. 5th DCA 1996)…ing the jury as to the lesser included offenses cannot be construed as a specific waiver of, or affirmative request to limit, the justifiable and excusable homicide instruction. Cf. Dukes v. State, 623 So. 2d 857 (Fla. 3d DCA 1993); Harris v. State, 580 So. 2d 804 (Fla. 1st DCA 1991). Accordingly, we must reverse the defendant’s judgment and sentence for attempted second-degree murder and remand this matter to the trial court. AFFIRMED in part; REVERSED in part; and REMANDED. PETERSON, C.J., and COBB, J., c…
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Grant v. State, 586 So. 2d 438 (Fla. 1st DCA 1991)…ldn’t let these crackers get away with killing a nigger.” The testimony of the co-perpetrator, Richard Forbes, also supports the underlying motive for the crimes. Sufficient evidentiary support existed for this departure reason. See Harris v. State, 580 So. 2d 804 (Fla. 1st DCA 1991). The conviction and sentence are, therefore, affirmed. ZEHMER, BARFIELD and WOLF, JJ., concur.…
Authorities Cited
- State v. Beasley, 580 So. 2d 139 (Fla. 1991)
- State v. Smith, 573 So. 2d 306 (Fla. 1990)
- United States v. Watchmaker, 761 F.2d 1459 (11th Cir. 1985)
- Allen v. Illinois, 474 U.S. 1100 (U.S. 1986)
- Harrell v. United States, 474 U.S. 1100 (U.S. 1986)
- United States v. Diaz, 690 F.2d 1352 (11th Cir. 1982)
- Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987)
- Armstrong v. State, 566 So. 2d 943 (Fla. 5th DCA 1990)
- Huene v. State, 570 So. 2d 1031 (Fla. 1st DCA 1990)
- United States v. Watchmaker, 766 F.2d 1493 (11th Cir. 1985)