GEORGE DAMOULAKIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Damoulakis was convicted of aggravated battery after being charged with attempted second-degree murder. The Florida appellate court reversed and remanded for a new trial due to the trial court's failure to instruct the jury on justifiable and excusable homicide, which constitutes fundamental error in murder and manslaughter cases.
The trial court's failure to instruct the jury on justifiable and excusable homicide in a case involving conviction of a greater offense (aggravated battery being within one step of manslaughter) constitutes fundamental, per se reversible error not subject to harmless error analysis. Additionally, the trial court's instruction that charges were listed in order of severity was incorrect and supports reversal.
[1] A trial court must instruct the jury on justifiable and excusable homicide in all murder and manslaughter cases.
[2] Failure to instruct the jury on justifiable and excusable homicide constitutes fundamental error in murder and manslaughter cases.
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Join FLexlaw to unlock all legal intelligence“A trial court must read the definitions of excusable and justifiable homicide in all murder and manslaughter cases. A failure to give these instructions constitutes fundamental error.”
Establishes the mandatory nature of justifiable and excusable homicide instructions and the fundamental error standard
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Join FLexlaw to unlock all legal intelligenceDamoulakis was charged with attempted second-degree murder with a deadly weapon and causing great bodily harm. A jury convicted him of the lesser offe…
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BLUE, Chief Judge.
George Damoulakis was charged with attempted second-degree murder with a deadly weapon and causing great bodily harm. He was convicted by a jury of the lesser offense of aggravated battery (with great bodily harm). Damoulakis raises three issues on appeal, challenging the sufficiency of the evidence, improper hearsay evidence, and jury instructions. While we see some merit as to the first two issues, we need not discuss them because we are required to reverse based on the incomplete jury instructions.
The trial court failed to instruct the jury on justifiable and excusable homicide. “A trial court must read the definitions of excusable and justifiable homicide in all murder and manslaughter cases. A failure to give these instructions constitutes fundamental error.” Van Loan v. State, 736 So. 2d 803, 804 (Fla. 2d DCA 1999) (citations omitted); see also Blandon v. State, 657 So. 2d 1198, 1199 (Fla. 5th DCA 1995). When a defendant has been convicted of manslaughter or a greater offense not more than one step removed, the failure to instruct on justifiable and excusable homicide is not subject to a harmless error analysis. See Black v. State, 695 So. 2d 459, 460 (Fla. 1st DCA 1997); see also State v. Abreau, 363 So. 2d 1063, 1064 (Fla.1978) (explaining that the error is per se reversible in such cases because it is impossible to determine the impact of the omission on the jury’s exercise of its inherent pardon power). Therefore, we are compelled to reverse.
We note an additional error. The trial court instructed the jury on attempted second-degree murder with a deadly weapon, attempted second-degree murder, attempted manslaughter, aggravated battery, and battery, in that order. In response to a jury question, the trial court informed the jury that the charges were listed in the order of severity. This was incorrect. Attempted manslaughter is a third-degree felony. See § 782.07(1), Fla. Stat. (1999) (manslaughter is second-degree felony); § 777.04(4), Fla. Stat. (1999) (attempt is one level below offense). Aggravated battery is a second-degree felony. See § 784.045, Fla. Stat. (1999). The trial court’s incorrect response to the jury’s question supports our decision to reverse this case and remand it for a new trial.
Reversed and remanded for a new trial.
FULMER and GREEN, JJ., concur.
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Citator
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Richardson v. State, 818 So. 2d 679 (Fla. 3d DCA 2002)…ental error because the trial court fails to advise the jury as to what constitutes lawful acts versus unlawful acts.” Philippe v. State, 795 So. 2d 173, 174 (Fla. 3d DCA 2001). See Armstrong v. State, 579 So. 2d 734 (Fla.1991); Damoulakis v. State, 814 So. 2d 1204 (Fla. 2d DCA 2002); Smith v. State, 773 So. 2d 1278 (Fla. 5th DCA 2000); Thurston v. State, 762 So. 2d 558 (Fla. 4th DCA 2000). Here, the trial court failed to so instruct the jury. It is the court’s responsibility to instruct the jury properly on t…
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Franco v. State, 901 So. 2d 901 (Fla. 4th DCA 2005)…o read the justifiable and excusable homicide jury instructions in all murder cases is per se fundamental error. Fletcher v. State, 828 So. 2d 460, 461 (Fla. 5th DCA 2002); Richardson v. State, 818 So. 2d 679 (Fla. 3d DCA 2002); Damoulakis v. State, 814 So. 2d 1204 (Fla. 2d DCA 2002); Van Loan v. State, 736 So. 2d 803, 804 (Fla. 2d DCA 1999), rev. denied, 791 So. 2d 1103 (Fla.2001). We read the Supreme Court of Florida’s precedent, on which many of these cases [*902] rely, differently. The line of cases sugge…
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Guardiola v. State, 884 So. 2d 140 (Fla. 2d DCA 2004)…e argument on direct appeal that the trial court’s failure to instruct the jury on the definitions of excusable and justifiable homicide1 constituted fundamental error requiring reversal of his aggravated battery conviction. In Damoulakis v. State, 814 So. 2d 1204 (Fla. 2d DCA 2002), Damoulakis was charged with attempted second-degree murder but was convicted of the lesser included offense of aggravated battery. The trial court in that case also failed to instruct the jury on the definitions of excusable and…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Blandon v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995)
- van Loan v. State, 736 So. 2d 803 (Fla. 2d DCA 1999)
- Duncan v. State, 695 So. 2d 459 (Fla. 3d DCA 1997)