ARIEL PEREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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SCHWARTZ, Chief Judge.
At the retrial required by our reversal of his previous conviction in Perez v. State, 578 So. 2d 510 (Fla. 3d DCA1991), the defendant was again found guilty of attempted second degree murder with a firearm. Unfortunately, we are again compelled to reverse because, although the jury charge initially defined excusable and justifiable homicide as part of the homicide instructions, it, obviously inadvertently, did not also specifically exclude justifiable and excusable homicide from the definition of the lesser included offense of manslaughter. Under Miller v. State, 573 So. 2d 337 (Fla.1991) and Rojas v. State, 552 So. 2d 914 (Fla.1989), the omission presents fundamental error, requiring a new trial although there was no objection below. Because the record does not sustain the state’s contention that the omission was affirmatively agreed to or invited by defense counsel, compare Armstrong v. State, 579 So. 2d 734 (Fla.1991), the judgment is therefore reversed for a new trial.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lucas v. State, 630 So. 2d 597 (Fla. 1st DCA 1993)…as a part of the charge on manslaughter is “fundamental” error, which may be raised for the [*599] first time on appeal, when the defendant is convicted of either manslaughter or a greater offense not more than one step removed. See Perez v. State, 610 So. 2d 648 (Fla. 3d DCA 1992) (holding that failure to explain justifiable and excusable homicide as part of the lesser-included offense of attempted manslaughter when defendant was charged with attempted second-degree murder was “fundamental” error which coul…
Authorities Cited
- Rojas v. State, 552 So. 2d 914 (Fla. 1989)
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991)
- Miller v. State, 573 So. 2d 337 (Fla. 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)