EDDIE KITCHEN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a conviction must be reversed if the trial court gives a jury instruction on a lesser included offense without defining the terms used in that instruction.
The defendant was charged with second degree murder and requested a jury instruction on manslaughter. The trial court instructed the jury that the def…
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PER CURIAM.
Eddie Kitchen appeals his conviction and sentence for second degree murder. We reverse.
Defendant was charged with second degree murder. At trial, defendant requested an instruction on the lesser included offense of manslaughter. The trial court instructed the jury that “the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously explained those terms.” (Emphasis supplied.) However, the trial court had not explained those terms. The jury found defendant guilty of second degree murder. The state properly concedes that defendant’s conviction must be reversed because the trial court committed fundamental error in instructing the jury on manslaughter without defining justifiable and excusable homicide. Rojas v. State, 552 So. 2d 914 (Fla.1989); Hedges v. State, 172 So. 2d 824 (Fla.1965); Perez v. State, 578 So. 2d 510 (Fla. 3d DCA 1991); Weiner v. State, 587 So. 2d 560 (Fla. 2d DCA 1991). Compare Smith v. State, 573 So. 2d 306 (Fla.1990) (short form jury instruction on justifiable and excusable homicide, followed by manslaughter instruction which refers to these definitions, is not error); State v. Schuck, 573 So. 2d 335 (Fla.1991) (same). We therefore quash defendant’s conviction and remand for a new trial.
Our disposition of this issue makes it unnecessary to reach the remaining point on appeal.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lavelle Nixon v. State, 603 So. 2d 660 (Fla. 3d DCA 1992)…commits fundamental error when it instructs the jury on manslaughter without defining justifiable and excusable homicide where there is evidence which would have supported either defense. Rojas v. State, 552 So. 2d 914 (Fla.1989); Kitchen v. State, 592 So. 2d 773 (Fla. 3d DCA1992); Banda v. State, 536 So. 2d 221 (Fla.1988), cert. denied, 489 U.S. 1087, 109 S.Ct. 1548, 103 L.Ed.2d 852 (1989). Here, because Nixon’s defense was self-defense, the omitted instruction would have covered a matter actually in disput…
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Ezequiel Reyes v. State, 924 So. 2d 932 (Fla. 3d DCA 2006)…ns for justifiable and excusable homicide. We reverse. In all murder and manslaughter cases, the court must instruct the jury as to the definitions of justifiable and excusable homicide. Rojas v. State, 552 So. 2d 914 (Fla.1989); Kitchen v. State, 592 So. 2d 773 (Fla. 3d DCA 1992). Failing to give these instructions is fundamental error. Miller v. State, 573 So. 2d 337 (Fla.1991). The one exception to this rule is where defense counsel affirmatively agreed to or requested the incomplete instruction. State v…
Authorities Cited
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- State v. Smith, 573 So. 2d 306 (Fla. 1990)
- Rojas v. State, 552 So. 2d 914 (Fla. 1989)
- State v. Schuck, 573 So. 2d 335 (Fla. 1991)
- Weiner v. State, 587 So. 2d 560 (Fla. 2d DCA 1991)
- Perez v. State, 578 So. 2d 510 (Fla. 3d DCA 1991)
- Kronheim v. PH-7 Tiffany Corp., 578 So. 2d 510 (Fla. 3d DCA 1991)