LARRY HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Hall appealed his convictions for attempted second-degree murder, armed burglary, aggravated assault on law enforcement, felon in possession of a firearm, and drug paraphernalia possession. The court reversed his attempted second-degree murder conviction because the trial court failed to give the mandatory jury instruction on justifiable and excusable homicide, but affirmed all other convictions.
The court reversed Hall's attempted second-degree murder conviction because the trial court failed to give the mandatory justifiable and excusable homicide jury instruction. Hall's general request that no lesser included offenses be read to the jury did not constitute a specific waiver of the justifiable and excusable homicide instruction, which is mandatory in all murder and manslaughter trials.
[1] Failure to give the mandatory justifiable and excusable homicide jury instruction in murder or manslaughter trials constitutes fundamental error when the defendant has be…
[2] A defendant's general request that the jury not be instructed on lesser included offenses does not constitute a specific waiver of, or affirmative request to limit, the j…
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Join FLexlaw to unlock all legal intelligence“In all murder and manslaughter trials, the jury must be instructed as to the definitions of justifiable and excusable homicide.”
Establishes the mandatory nature of the justifiable and excusable homicide instruction in homicide cases
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Join FLexlaw to unlock all legal intelligenceHall was convicted of attempted second-degree murder, armed burglary of a dwelling, two counts of aggravated assault on a law enforcement officer, pos…
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ANTOON, Judge.
The defendant challenges his convictions of attempted second-degree murder1, armed burglary of a dwelling2, two counts of aggravated assault on a law enforcement officer3, possession of a firearm by a convicted felon4, and possession of drug paraphernalia5. Only his challenge concerning his attempted second-degree murder conviction has merit. In this regard, we reverse the judgment and sentence for attempted second-degree murder because the trial court failed to give the mandatory justifiable and excusable homicide jury instruction. In all other respects, we affirm the defendant’s judgments and sentences.
At the conclusion of trial, the trial court instructed the jury on attempted second-degree murder but failed to give the standard jury instruction on justifiable and excusable homicide. Fla. Std. Jury Instr. (Crim.) 61. See also §§ 782.02, 782.03, Fla. Stat. (1993). In all murder and manslaughter trials, the jury must be instructed as to the definitions of justifiable and excusable homicide. State v. Smith, 573 So. 2d 306 (Fla.1990). Failure to give this instruction constitutes fundamental error in cases where the defendant has been convicted of manslaughter or a greater offense not more than one step removed.. State v. Lucas, 645 So. 2d 425 (Fla.1994).
Relying on Armstrong v. State, 579 So. 2d 734 (Fla.1991), the state argues that reversal is not warranted because the defendant requested that the jury not be instructed as to any lesser included offenses. However, Armstrong is distinguishable and therefore the state’s reliance upon it is misplaced. In Armstrong, the supreme court held that a defendant who specifically requests an abbreviated form of the justifiable and excusable homicide instruction cannot later complain that the instruction was improper. Id. at 735. Here, the defendant’s attorney did not mention the justifiable and excusable homicide instruction in his comment to the court. He merely stated:
Your Honor, also for the record, I would like to state that my client has requested that no lessers be read to the jury. However, in our pretrial discussions or pre-jury discussions I understand that the Court is going to include such offenses.
The defendant’s request that the court forego instructing the jury as to the lesser included offenses cannot be construed as a specific waiver of, or affirmative request to limit, the justifiable and excusable homicide instruction. Cf. Dukes v. State, 623 So. 2d 857 (Fla. 3d DCA 1993); Harris v. State, 580 So. 2d 804 (Fla. 1st DCA 1991). Accordingly, we must reverse the defendant’s judgment and sentence for attempted second-degree murder and remand this matter to the trial court.
AFFIRMED in part; REVERSED in part; and REMANDED.
PETERSON, C.J., and COBB, J., concur. . §§ 782.04(2), 777.04(1), and (4), Fla. Stat. (1993).
. § 810.02(2)(a), and (b), Fla. Stat. (1993).
. §§ 784.021(l)(a) and 784.07(2)(c), Fla. Stat. (1993).
. § 790.23, Fla. Stat. (1993).
. § 893.147(1), Fla. Stat. (1993).
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Citator
Cited By
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Smith v. State, 773 So. 2d 1278 (Fla. 5th DCA 2000)…ruction is fundamental error and the conviction must be reversed. It appears clear that he is correct. In all murder and manslaughter cases, the jury must be instructed as to the definitions of justifiable and excusable homicide. See Hall v. State, 677 So. 2d 1353 (Fla. 5th DCA 1996), review granted, 687 Sd.2d 1303 (Fla.1997); Thurston v. State, 762 So. 2d 558 (Fla. 4th DCA 2000). Failure to give the justifiable and excusa [*1280] ble homicide instruction is fundamental error, see Van Loan v. State, 736 So. 2…1 / 2
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Jimenez v. State, 994 So. 2d 1141 (Fla. 3d DCA 2008)….* The fact that the defendant unsuccessfully tried to waive instructions on lesser included offenses “cannot be construed as a specific waiver of, or affirmative request to limit, the justifiable and excusable homicide instruction.” Hall v. State, 677 So. 2d 1353, 1355 (Fla. 5th DCA 1996) (citations omitted). See also Reyes v. State, 924 So. 2d 932 (Fla. 3d DCA 2006); Richardson v. State, 818 So. 2d 679 (Fla. 3d DCA 2002). For the stated reasons, we must reverse the judgment and remand the case for a new tr…
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Roberts v. State, 168 So. 3d 252 (Fla. 1st DCA 2015)…in a fundamentally erroneous fashion.” Bradshaw v. State, 61 So. 3d 1266, 1266 (Fla. 3d DCA 2011) (citing Jimenez v. State, 994 So. 2d 1141, 1143 (Fla. 3d DCA 2008)); see also Wade v. State, 155 So. 3d 1257, 1259 (Fla. 1st DCA 2015); Hall v. State, 677 So. 2d 1353, 1355 (Fla. 5th DCA 1996). Similarly here, counsel’s failure to request a manslaughter instruction essentially expressed a desire not to have a manslaughter instruction given; however, if that instruction had been given in an incomplete or inaccura…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Smith, 573 So. 2d 306 (Fla. 1990)
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991)
- State v. Lucas, 645 So. 2d 425 (Fla. 1994)
- Harris v. State, 580 So. 2d 804 (Fla. 1st DCA 1991)
- Dukes v. State, 623 So. 2d 857 (Fla. 3d DCA 1993)