PRESTON LAMAR TUBMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1994-02-23
No. 93-590
BARFIELD and BENTON, JJ., concur.
633 So. 2d 485 Florida District Court of Appeal, First District (1994) Positive Treatment
Cited by 4 cases
Topics
Harmless Error Doctrine Felony Murder Jury Instructions

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

Appellant, Preston Lamar Tubman, challenges his conviction for first-degree murder, contending that the trial court erred by failing to instruct the jury on the underlying crime of robbery in connection with the felony-murder charge. The state concedes the error,1 but argues it was harmless under the circumstances. We cannot agree. Although the state charged Tubman only with premeditated first-degree murder, the primary thrust of the state’s case was felony murder. This offense was the dominant theory advanced during the state’s closing argument, and the facts of the case support felony-murder rather than premeditated murder. Moreover, it is impossible to tell from the verdict form, which only listed first-degree murder, whether the jury based its verdict of guilt on either premeditated or felony murder. Under the circumstances, we cannot conclude that the failure to instruct on the underlying robbery felony was harmless error. See, e.g., Franklin v. State, 403 So. 2d 975 (Fla.1981); State v. Jones, 377 So. 2d 1163 (Fla.1979).

REVERSED and REMANDED for new trial.

BARFIELD and BENTON, JJ., concur. . See Brumbley v. State, 453 So. 2d 381 (Fla.1984); Robles v. State, 188 So. 2d 789 (Fla.1966).

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  • Harleme Larry v. State, 241 So. 3d 246 (Fla. 2d DCA 2018)
    …essential that the underlying felony "be defined sufficiently to ensure the accused a fair trial." Spagnolo v. State, 116 So. 3d 599, 604 (Fla. 5th DCA 2013) (quoting State v. Jones, 377 So. 2d 1163, 1164 (Fla. 1979)); see also Tubman v. State, 633 So. 2d 485, 485 (Fla. 1st DCA 1994) (recognizing error in failure to instruct on the underlying crime of robbery in connection with the offense of felony murder). Thus, on remand, the trial court must instruct the jury on robbery, the underlying felony for…
  • Harleme Larry v. State (Fla. 2d DCA 2018)

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