MARCUS DUNCAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marcus Duncan appealed his second degree murder conviction, challenging a jury instruction that improperly merged voluntary and involuntary manslaughter instructions. The court affirmed the conviction as the instructional error was not fundamental without trial objection, but remanded to correct improper probation conditions imposed without statutory authorization.
The instructional error was not fundamental because no objection was made at trial and the error related to intent, which was not in dispute. The conviction is affirmed. However, the requirement to pay First Step, Inc. is struck as it was imposed without statutory authorization at the time of the offense, and the employment condition is modified to require only active pursuit of gainful employment.
[1] A jury instruction for voluntary manslaughter should not be given when the defendant is charged only with second-degree murder, as voluntary manslaughter is only a lesser…
[2] An erroneous jury instruction is not fundamental error, and thus not preserved for appeal, if the error relates to an element of the crime that was not in dispute.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“it is an inherent and indispensable requisite of a fair and impartial trial ... that a defendant be accorded the right to have a court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence. Instructions, however, are subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred”
Establishes that jury instruction errors must be objected to at trial or constitute fundamental error to be reviewed on appeal
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Join FLexlaw to unlock all legal intelligenceMarcus Duncan was convicted of second degree murder. The trial court provided jury instructions that merged instructions for voluntary and involuntary…
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PETERSON, Judge.
Marcus Duncan appeals his conviction for second degree murder alleging he is entitled to a new trial because the trial court’s manslaughter instruction to the jury was fundamentally flawed.
We agree with Duncan that the trial court erred by merging the instructions for voluntary and involuntary manslaughter. The instruction for voluntary manslaughter should not have been given because Duncan was only charged with second degree murder. It is only when manslaughter is being defined as a lesser included offense of first degree premeditated murder that the instruction for voluntary manslaughter is to be given. Standard Jury Instructions in Criminal Cases (93-1), 636 So. 2d 502, 503-504 (Fla.1994).
Although the trial court erred by merging the two types of manslaughter, no objection was made at trial and the error was not fundamental. In State v. Delva, 575 So. 2d 643 (Fla.1991), the supreme court observed that:
[I]t is an inherent and indispensable requisite of a fair and impartial trial ... that a defendant be accorded the right to have a court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence. Instructions, however, are subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred .... Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.
575 So. 2d 643, 644-45 (citations omitted). In the instant case, an erroneous instruction was given. However, the error was not objected to, and it was not fundamental because the erroneous instruction related to the element of intent which is not in issue. There was no question that appellant intentionally committed an act which caused the death of the victim. Further, the jury was never deprived of its pardon power; it could have just as easily found appellant did not act with a depraved mind in shooting the victim, but rather had only acted with culpable negligence. Cf State v. Abreau, 363 So. 2d 1063 (Fla.1978).
Duncan also objects to the probation order requiring him to make a payment to First Step, Inc., and to maintain full-time employment. We strike the provision for the First Step payment because Duncan’s offense took place on August 9,1994 and legislative authorization for requiring payments to First Step, Inc., was not made until July 1, 1995. Bruce v. State, 687 So. 2d 1322 (Fla. 5th DCA 1997); Tibero v. State, 646 So. 2d 213 (Fla. 5th DCA 1994). The employment condition should require Duncan only to actively seek gainful employment. Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993).
The conviction for second degree mürder is affirmed, but we remand for correction of the probation order. CONVICTION AFFIRMED; REMANDED.
GRIFFIN, C.J., and GOSHORN, J., concur.
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Citator
Cited By
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King v. State, 800 So. 2d 734 (Fla. 5th DCA 2001)…. 2d 771 (Fla. 5th DCA 2000); Jones v. State, 666 So. 2d 995 (Fla. 5th DCA 1996). However, in order for the error in the instruction to be fundamental, it must pertain to an element of the crime that is a disputed issue in the case. Duncan v. State, 703 So. 2d 1069 (Fla. 5th DCA 1997), rev. denied, 718 So. 2d 167 (Fla.1998); Johnson v. State, 632 So. 2d 1062 (Fla. 5th DCA 1994); Delva. Once the error is deemed fundamental, it may be reviewed on appeal. In order to determine whether fundamental error was commi…
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Rayl v. State, 891 So. 2d 1052 (Fla. 2d DCA 2004)…f manslaughter with a firearm and sentenced to seventeen years in prison. Rayl then filed a petition for writ of habeas corpus in this court alleging ineffective assistance of appellate counsel for counsel’s failure to have brought Duncan v. State, 703 So. 2d 1069 (Fla. 5th DCA 1997), to the attention of the appellate court to preclude resentencing for manslaughter. In Duncan, the appellant challenged a conviction for second-degree murder, arguing that the manslaughter instruction provided to the jury was fun…
Authorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- Tibero v. State, 646 So. 2d 213 (Fla. 5th DCA 1994)
- Goshay v. State, 646 So. 2d 213 (Fla. 1st DCA 1994)
- STANDARD JURY INSTRUCTIONS IN CRIM. CASES (93-1), 636 So. 2d 502 (Fla. 1994)
- Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993)
- Bruce v. State, 687 So. 2d 1322 (Fla. 5th DCA 1997)