LAVELLE NIXON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Nixon was convicted of second-degree attempted murder, armed robbery, and unlawful firearm possession. The appellate court reversed the attempted murder and firearm possession convictions due to incomplete jury instructions on justifiable and excusable homicide, but affirmed the armed robbery conviction.
The trial court committed fundamental error by instructing on attempted manslaughter without defining excusable homicide when self-defense was actually in dispute. A defendant also cannot be separately convicted for unlawful firearm possession during the commission of a felony and for the underlying felony of attempted murder with a firearm. The attempted murder and firearm possession convictions are reversed; the armed robbery conviction is affirmed.
[1] A trial court commits fundamental error by instructing the jury on manslaughter without defining justifiable and excusable homicide when evidence supports either defense.
[2] A defendant cannot be separately convicted and sentenced for unlawful display of a firearm during a felony and for the underlying felony.
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Join FLexlaw to unlock all legal intelligence“A trial court 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.”
Establishes the legal standard requiring definition of justifiable and excusable homicide in manslaughter instructions
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Join FLexlaw to unlock all legal intelligenceNixon claimed he shot at a victim in self-defense after being threatened earlier that day by armed individuals and then confronted by the victim with …
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PER CURIAM.
Defendant Lavelle Nixon seeks reversal of his criminal convictions for second-degree attempted murder with a firearm; armed robbery with a firearm; and unlawful possession of a firearm while engaged in a criminal offense. Based upon our examination of the record and briefs, as well as the state’s confession of error, we find that the jury instructions given with respect to the offenses of attempted murder and possession of a firearm during the commission of a felony were incomplete and necessitate reversal for a new trial. The defendant’s conviction of armed robbery is nonetheless affirmed.
At trial, the defendant claimed that early on the day of the incident which formed the basis of the charges brought against him, he was confronted by several cars with passengers pointing guns at him. Nixon managed to escape the scene. Immediately thereafter, someone told him that he was going to be the target of a shooting. A few hours later, the victim drove up to him, pointing a gun. Nixon claimed he was scared and began shooting. The evidence at trial demonstrated that after the victim left his car and was running away from the defendant, Nixon entered the victim’s vehicle and fled the scene.
The charge of attempted felony murder went to the jury with the lesser offenses of attempted murder in the second degree, attempted murder in the third degree, attempted manslaughter, and aggravated battery. In defining attempted manslaughter to the jury, the court stated:
However, the defendant cannot be guilty of attempted manslaughter if the attempted killing was either justifiable or excusable homicide as I have previously explained those terms.
At this point, the court had previously explained neither justifiable nor excusable homicide. The court later defined the term justifiable, but not the term excusable, homicide. The court never charged the jury separately on the elements of the offense of unlawful display of a firearm while engaged in a felony.
Appellant correctly points out that the trial court was required to instruct the jury on attempted manslaughter as the next immediate lesser included offense of the offense charged. Marshall v. State, 529 So. 2d 797 (Fla. 3d DCA1988). A trial court 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 dispute. State v. Delva, 575 So. 2d 643, 645 (Fla.1991); Morton v. State, 459 So. 2d 322 (Fla. 3d DCA1984), review denied, 467 So. 2d 1000 (Fla.1985). Thus, the trial court’s failure to instruct the jury on excusable homicide during the attempted manslaughter instruction requires reversal of defendant’s conviction for second-degree attempted murder with a firearm.
A defendant cannot be separately convicted and sentenced for the crime of unlawful display of a firearm while engaged in a felony and for the underlying felony of attempted murder in the second degree with a firearm. Cleveland v. State, 587 So. 2d 1145 (Fla.1991). Also, in instructing a jury for an offense defined in section 790.07(2), Florida Statutes (1991), that instruction should clearly reflect the underlying crime charged.
For the foregoing reason, defendant’s conviction for attempted murder and possession of a firearm during the commission of á felony, as well as the sentence imposed, are reversed and remanded for a new trial.
The defendant’s conviction and sentence for armed robbery is affirmed.
Affirmed in part and reversed in part and remanded.
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Stallings v. State, 634 So. 2d 784 (Fla. 5th DCA 1994)…t on both excusable and justifiable homicide constitutes fundamental error. Lucas v. State, 630 So. 2d 597 (Fla. 1st DCA 1993); Taylor v. State, 622 So. 2d 603 (Fla. 2d DCA 1993); Rinaldi v. State, 614 So. 2d 1197 (Fla. 2d DCA 1993); Nixon v. State, 603 So. 2d 660 (Fla. 3d DCA 1992). In Lucas, the first district reaffirmed that such an error is fundamental but admitted some degree of uncertainty due to the supreme court’s statement (by a majority of four) in State v. Delva, 575 So. 2d 643, 645 (Fla.1991) tha…
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Carlton Taylor v. State, 643 So. 2d 1122 (Fla. 3d DCA 1994)…Taylor’s defense was self-defense, and the omitted instruction would have covered a matter in dispute. Rojas v. State, 552 So. 2d 914 (Fla.1989); Sales v. State, 621 So. 2d 487 (Fla. 3d DCA), review denied, 626 So. 2d 208 (Fla.1993); Nixon v. State, 603 So. 2d 660 (Fla. 3d DCA 1992). Accordingly, Taylor’s conviction and sentence is reversed, and the case is remanded for a new trial. Reversed and remanded. . We must express concern with the prosecutor's obvious lack of candor throughout the proceedings in th…
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Morris Lee Sales v. State, 653 So. 2d 456 (Fla. 3d DCA 1995)…on of a felony, based upon the same act, were impermissibly duplicative and violated the defendant’s double jeopardy rights. See Thomas v. State, 617 So. 2d 1128 (Fla. 3d DCA 1993); Galban v. State, 605 So. 2d 579 (Fla. 3d DCA 1992); Nixon v. State, 603 So. 2d 660 (Fla. 3d DCA 1992). Accordingly, the conviction for possession of a firearm during the commission of a felony must be reversed. Affirmed in part; reversed in part, and remanded for resentencing.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Rojas v. State, 552 So. 2d 914 (Fla. 1989)
- Banda v. State, 536 So. 2d 221 (Fla. 1988)
- Morton v. State, 459 So. 2d 322 (Fla. 3d DCA 1984)
- Banda v. Florida, 489 U.S. 1087 (U.S. 1989)
- Dahdah v. United States, 489 U.S. 1087 (U.S. 1989)
- Brindley Marshall v. State, 529 So. 2d 797 (Fla. 3d DCA 1988)
- Kitchen v. State, 592 So. 2d 773 (Fla. 3d DCA 1992)