ERIC RICHARDSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Eric Richardson was convicted of attempted second degree murder, but the Florida appellate court reversed and remanded for a new trial because the trial court committed fundamental error by failing to instruct the jury on the definitions of excusable and justifiable attempted homicide.
The failure to give instructions and definitions of excusable and justifiable attempted homicide constitutes fundamental error because it fails to advise the jury as to what constitutes lawful versus unlawful acts. Richardson's conviction must be reversed and remanded for a new trial because there was no affirmative waiver of this instructional error by defense counsel.
[1] Failure to instruct the jury on the definitions of excusable and justifiable attempted homicide constitutes fundamental error in a prosecution for attempted homicide.
[2] A trial court has a responsibility to instruct the jury on the definitions of excusable and justifiable attempted homicide.
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Join FLexlaw to unlock all legal intelligence“the failure to give instructions and definitions of excusable and justifiable homicide in a murder or manslaughter case constitutes fundamental error because the trial court fails to advise the jury as to what constitutes lawful acts versus unlawful acts”
Establishes the fundamental error standard for instructional omissions in homicide cases
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Join FLexlaw to unlock all legal intelligenceEric Richardson was charged with attempted second degree murder. At trial, the court failed to provide jury instructions defining excusable and justif…
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SHEVIN, Judge.
Eric Richardson appeals a judgment of conviction for attempted second degree murder.
We reverse and remand for a new trial on attempted second degree murder. Richardson correctly argues that the court committed fundamental error in failing to instruct the jury as to the definition of excusable and justifiable attempted homicide as provided in the standard jury instruction, “Introduction to Attempted Homicide.” Fla. Std. Jury Instr. (Crim.).
It is well-settled law that the “failure to give instructions and definitions of excusable and justifiable homicide in a murder or manslaughter case constitutes fundamental 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 the definitions of excusable and justifiable attempted homicide. Van Loan v. State, 736 So. 2d 803 (Fla. 2d DCA 1999).
Although we recognize that defense counsel may waive this error by “affirmatively agreeing] to the omission or the alteration of a jury instruction,” Philippe, 795 So. 2d at 174; State v. Lucas, 645 So. 2d 425 (Fla.1994); Armstrong, 579 So. 2d at 734, a review of the record does not reveal an affirmative waiver. See Van Loan, 736 So. 2d at 804; Blandon v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995).
See also, Nelson v. State, 679 So. 2d 1249, 1250 (Fla. 4th DCA 1996).
Accordingly, Richardson is entitled to a new trial.
Reversed and remanded for a new trial on the attempted second degree murder charge.
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Gordon v. State, 126 So. 3d 292 (Fla. 3d DCA 2011)…ustifiable homicide. Because we reverse for a new trial on Count One, we need not decide whether, given defense counsel’s response, the failure to instruct on excusable and justifiable homicide constitutes fundamental error. See Richardson v. State, 818 So. 2d 679 (Fla. 3d DCA 2002) (stating general rule that failure to instruct jury on excusable and justifiable homicide in any murder or manslaughter trial constitutes fundamental error, even if defense counsel does not request instruction); cf. Philippe v. St…
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Jimenez v. State, 994 So. 2d 1141 (Fla. 3d DCA 2008)…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 trial. We reject the defendant’s second point on appeal, claiming that the evidence was legally insufficient to convict him, without discussion.…
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Franco v. State, 901 So. 2d 901 (Fla. 4th DCA 2005)…of cases which could be read to hold that the failure to 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 thes…
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
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991)
- State v. Lucas, 645 So. 2d 425 (Fla. 1994)
- Blandon v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995)
- van Loan v. State, 736 So. 2d 803 (Fla. 2d DCA 1999)
- Smith v. State, 773 So. 2d 1278 (Fla. 5th DCA 2000)
- Philippe v. State, 795 So. 2d 173 (Fla. 3d DCA 2001)
- Damoulakis v. State, 814 So. 2d 1204 (Fla. 2d DCA 2002)
- Nelson v. State, 679 So. 2d 1249 (Fla. 4th DCA 1996)
- Austin v. State, 762 So. 2d 558 (Fla. 4th DCA 2000)