MARGARET ELKIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Trial court erred in refusing jury instruction on third degree felony murder when evidence supported it as a lesser included offense, requiring reversal and retrial.
A trial court must provide jury instructions on all lesser included degrees of murder supported by evidence, regardless of the charging document allegations.
[1] Trial courts must provide jury instructions on all lesser included degrees of murder supported by the evidence, regardless of the charges alleged in the charging document…
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Join FLexlaw to unlock all legal intelligence“that in the case of degree crimes, requested instructions on all lesser degrees that are supported by the evidence must be given regardless of the allegations of the charging document”
Florida Supreme Court standard for lesser included offense instructions in degree crimes
Margaret Elkin was charged with premeditated first degree murder of her husband and convicted of second degree murder on retrial.…
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PER CURIAM.
Margaret Elkin, the defendant, was charged with the premeditated first degree murder of her husband, and was eventually found guilty of second degree murder on retrial. Of the several issues raised by the defendant in this appeal, we find merit only in the claim that the trial court erred in refusing the defendant’s requested jury instruction on third degree felony murder. The Florida Supreme Court has held “that in the case of degree crimes, requested instructions on all lesser degrees that are supported by the evidence must be given regardless of the allegations of the charging document.” Herrington v. State, 538 So. 2d 850, 851 (Fla.1989).
Under the dictates of Her-rington, the refusal to provide a jury instruction on third degree murder premised upon the underlying felony of aggravated battery, constitutes reversible error.
Accordingly, because the evidence supported the permissive lesser included offense of third degree felony murder premised upon aggravated battery, we are required to find that the trial court erred in refusing the requested instruction, and the ease must be reversed and remanded for a new trial. See Herrington, 538 So. 2d at 850; Green v. State, 475 So. 2d 235 (Fla.1985); Jackson v. State, 622 So. 2d 182 (Fla. 1st DCA 1993); Garcia v. State, 574 So. 2d 240 (Fla. 1st DCA 1991).
Reversed and remanded for a new trial.
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Wiley v. State, 60 So. 3d 588 (Fla. 4th DCA 2011)…ient from which to infer any malice. The jury also convicted Wiley of third-degree murder. If an aggravated battery results in death, it can be third-degree murder. Sheridan v. State, 799 So. 2d 223, 225 (Fla. 2d DCA 2001); see also Elkin v. State, 636 So. 2d 570 (Fla. 3d DCA 1994); Garcia v. State, 574 So. 2d 240, 241 (Fla. 1st DCA 1991); Johnson v. State, 423 So. 2d 614, 615 (Fla. 1st DCA 1982). We find the evidence sufficient to sustain Wiley’s conviction for third-degree murder. Therefore, we vacate Wile…
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Sheridan v. State, 799 So. 2d 223 (Fla. 2d DCA 2001)…ogic to that whatsoever.” Ultimately, the trial judge was persuaded not to submit the instruction. The trial judge’s first inclination was correct. If an aggravated battery results in death, it can indeed be third-degree murder. See Elkin v. State, 636 So. 2d 570 (Fla. 3d DCA 1994); Garcia v. State, 574 So. 2d 240 (Fla. 1st DCA 1991); Johnson v. State, 423 So. 2d 614 (Fla. 1st DCA 1982). Further, if there is evidence supporting the lesser charge of third-degree murder, the defendant is entitled to such an in…
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Kharibe Burgan v. State, 675 So. 2d 175 (Fla. 5th DCA 1996)…e reversible error where the evidence supports the giving of the instruction. See Herrington v. State, 538 So. 2d 850 (Fla.1989); see also Green v. State, 475 So. 2d 235 (Fla.1985); Peterson v. State, 643 So. 2d 9 (Fla. 2d DCA 1994); Elkin v. State, 636 So. 2d 570 (Fla. 3d DCA 1994); Jackson v. State, 622 So. 2d 182 (Fla. 1st DCA 1993); Garcia v. State, 574 So. 2d 240 (Fla. 1st DCA 1991). Sub judice, there was testimony that defendant held a gun on one victim and ordered him and the other occupants to lie on…
Authorities Cited
- Green v. State, 475 So. 2d 235 (Fla. 1985)
- Herrington v. State, 538 So. 2d 850 (Fla. 1989)
- Garcia v. State, 574 So. 2d 240 (Fla. 1st DCA 1991)
- Jackson v. State, 622 So. 2d 182 (Fla. 1st DCA 1993)