ERIC FRAZIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court committed fundamental error by giving a jury instruction on reasonable doubt identical to one previously held erroneous, requiring reversal and a new trial.
The defendant was convicted of burglary. The trial court gave a preliminary jury instruction on reasonable doubt that mirrored an instruction previous…
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PER CURIAM.
Reversed. The trial court gave a preliminary instruction on reasonable doubt identical to the instruction which we held to be fundamental error in Jones v. State, 656 So. 2d 489 (Fla. 4th DCA 1995), rehearing en banc and certification denied (July 21,1995), notice to invoke discretionary jurisdiction filed July 26, 1995 (Fla. No. 86,175). A new trial is required.
In addition, on any retrial, no instruction should be given on attempted felony murder, as the supreme court held in State v. Gray, 654 So. 2d 552 (Fla.1995), that the crime of attempted felony murder no longer exists in the state of Florida. Gray must be applied to this case.
Finally, on retrial the trial court should not provide the jury with the stealth instruction, as the entry into the residence in this burglary was anything but stealthy. See Vinson v. State, 575 So. 2d 1371 (Fla. 4th DCA 1991); Harrell v. State, 647 So. 2d 1016 (Fla. 4th DCA 1994). The testimony revealed that the appellant smashed through the glass door of the home in broad daylight and in the presence of the victims.
Reversed and remanded for proceedings consistent with this opinion.
GLICKSTEIN, WARNER and KLEIN, JJ., concur.
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Donnie Hugh Doctor v. State, 677 So. 2d 1372 (Fla. 3d DCA 1996)…view granted 677 So. 2d 841 (Fla.1996); Bove v. State, 670 So. 2d 1066 (Fla. 4th DCA 1996), cause dismissed, 678 So. 2d 339 (Fla.1996); Wilson v. State, 668 So. 2d 998 (Fla. 4th DCA 1995), review granted, 672 So. 2d 543 (Fla.1996); Frazier v. State, 664 So. 2d 985 (Fla. 4th DCA 1995), review denied, 666 So. 2d 145 (Fla.1995), cert, denied,-U.S.-, 116 S.Ct. 1679, 134 L.Ed.2d 781 (1996); Rayfield v. State, 664 So. 2d 6 (Fla. 4th DCA 1995), review denied, 664 So. 2d 249 (Fla.1995), cert. denied, -U.S.-, 116 S.Ct…
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Pierce v. State, 671 So. 2d 186 (Fla. 4th DCA 1996)…No. 94-3019, [*189] — So. 2d — [1996 WL 1175] (Fla. 4th DCA January 3, 1996); Cifuentes v. State, 21 Fla. L. Weekly D77, — So. 2d — [1996 WL 1117] (Fla. 4th DCA January 3, 1996); Wilson v. State, 668 So. 2d 998 (Fla. 4th DCA 1995); Frazier v. State, 664 So. 2d 985 (Fla. 4th DCA), rev. denied, No. 86,543, 666 So. 2d 145 (Fla. Dec. 19, 1995); Rayfield v. State, 664 So. 2d 6 (Fla. 4th DCA), rev. denied, 664 So. 2d 249 (Fla.1995); Jones v. State, 657 So. 2d 1178 (Fla. 4th DCA), reh’g granted, 662 So. 2d 365 (Fla.…
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Daughtry v. State, 804 So. 2d 426 (Fla. 4th DCA 2001)…into the premises was stealthy and then also gave the stealth instruction. The supreme court found that the testimony of the victim “not only fails to prove the [element of stealth] but actually disproves it.” 76 So. 2d at 148. In Frazier v. State, 664 So. 2d 985, 986 (Fla. 4th DCA 1995), once more with all but identical facts, we held that the trial court could not give the stealth instruction because the entry into the residence was “anything but stealthy.” So too in Harrell v. State, 647 So. 2d 1016 (Fla.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Jones v. State, 656 So. 2d 489 (Fla. 4th DCA 1995)
- Harrell v. State, 647 So. 2d 1016 (Fla. 4th DCA 1994)
- Vinson v. State, 575 So. 2d 1371 (Fla. 4th DCA 1991)