ROBERT CRAWFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the conviction for attempted second-degree murder, finding no fundamental error in the jury instructions. However, it reversed the conviction for aggravated assault, reinstating the jury's verdict for attempted armed robbery.
Defendant was charged with attempted first-degree murder and attempted armed robbery but convicted of attempted second-degree murder and aggravated as…
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PER CURIAM.
Defendant, who had been charged with attempted first-degree murder and attempted armed robbery, appeals his convictions for attempted second-degree murder and aggravated assault. The state cross-appeals the trial court’s directed verdict of acquittal of attempted armed robbery and adjudication of guilt of the lesser offense of aggravated assault. We affirm the defendant’s conviction for attempted second-degree murder and reverse his conviction for aggravated assault.
As to the attempted second-degree murder conviction, we do not agree with defendant’s contention on appeal that the trial court’s failure to instruct the jury on attempted manslaughter was fundamental error. Defendant’s failure to request that instruction and object to the trial court’s omission thereof procedurally bars review. See McKinney v. State, 579 So. 2d 80, 83-84 (Fla.1991); Lee v. State, 526 So. 2d 777, 778 (Fla. 2d DCA 1988).
In a similar case where the defendant was charged with first-degree murder and convicted of second-degree murder, whether or not there should have been given to the jury as a part of the manslaughter instruction the short form excusable homicide instruction, which was subject to a potentially erroneous interpretation, was said to be “properly ... within the province and responsibility of defense counsel as a matter of trial tactics and strategy.” State v. Smith, 573 So. 2d 306, 310 (Fla.1990) (quoting Smith v. State, 539 So. 2d 514, 517 (Fla. 2d DCA 1989)).
As to the aggravated assault conviction, the trial court erred in granting the defendant’s motion for judgment of acquittal of attempted armed robbery and directing a conviction of aggravated assault. See Thomas v. State, 584 So. 2d 1022 (Fla. 1st DCA 1991).
The attempted second-degree murder conviction is affirmed. On remand, the jury verdict on attempted armed robbery shall be reinstated and a conviction entered in that regard.
LEHAN, C.J., and THREADGILL and BLUE, JJ., concur.
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Barrientos v. State, 1 So. 3d 1209 (Fla. 2d DCA 2009)…mental error. We note that even a complete failure to instruct the jury on the applicable lesser included offenses in this case would not have constituted fundamental error. See McKinney v. State, 579 So. 2d 80, 83-84 (Fla.1991); Crawford v. State, 606 So. 2d 1204, 1205 (Fla. 2d DCA 1992); Thompson v. State, 969 So. 2d 1223, 1224 (Fla. 1st DCA 2007). It follows that the delivery of a truncated version of the instructions on the lesser included offenses likewise could not constitute fundamental error. That sa…
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van Loan v. State, 736 So. 2d 803 (Fla. 2d DCA 1999)…s error and agreed to the omission. The trial court shoulders the responsibility to properly instruct the jury on the definitions of excusable and justifiable homicide. See Blandon, 657 So. 2d at 1199-1200. The States argues that Crawford v. State, 606 So. 2d 1204 (Fla. 2d DCA 1992), controls this case. We disagree. In Crawford, the State charged the defendant with attempted first-degree murder. See id. at 1204. The jury convicted him of attempted second-degree murder. See id. at 1204. On appeal, Crawford arg…
Authorities Cited
- State v. Smith, 573 So. 2d 306 (Fla. 1990)
- Boris McKINNEY v. State, 579 So. 2d 80 (Fla. 1991)
- Smith v. State, 539 So. 2d 514 (Fla. 2d DCA 1989)
- Thomas v. State, 584 So. 2d 1022 (Fla. 1st DCA 1991)
- In re the Forfeiture OF United States Currency IN THE Amount OF Seven Thousand ONE Hundred Thirty-Seven Dollars & NO/100 ($7, 526 So. 2d 777 (Fla. 4th DCA 1988)
- LEE v. State, 526 So. 2d 777 (Fla. 2d DCA 1988)