MICHAEL JOE MCCOY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael McCoy was convicted of manslaughter and aggravated battery with a firearm in connection with a shooting. On appeal, he challenged the jury instructions and verdict form contending that lesser-included offenses must be listed in descending order by degree, with aggravated battery (second-degree felony) before attempted manslaughter (third-degree felony). The First District affirmed, holding that such ordering errors are not fundamental error under its precedent, while certifying conflict with the Fifth District's contrary holding.
An error in the trial court's listing of lesser-included offenses on a verdict form and in jury instructions is not fundamental error in the First District. The judgment and sentence are affirmed because the jury was accurately instructed and the evidence supports McCoy's convictions.
[1] An error in the listing of lesser-included offenses on a verdict form and in jury instructions is not fundamental error in the First District.
[2] A jury verdict form listing lesser-included offenses in an order other than descending degree of offense does not constitute fundamental error if the jury was accurately…
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Join FLexlaw to unlock all legal intelligence“An error in the trial court's listing of lesser-included offenses on a verdict form and in jury instructions is not fundamental error in this district.”
Establishes the First District's holding that such procedural errors do not constitute reversible fundamental error.
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Join FLexlaw to unlock all legal intelligenceMcCoy was charged with second-degree murder of a man he believed his wife was having an affair with, and attempted second-degree murder of the wife. A…
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Appellant Michael J. McCoy was charged with the second-degree murder of a man with whom he believed his wife was having an affair and of the attempted second-degree murder of the wife. A jury found him guilty of the lesser-included offenses of manslaughter and aggravated battery with a firearm. On appeal, he challenges his judgment and sentence for aggravated battery with a firearm, alleging that the jury instructions and verdict form were fundamentally erroneous because the aggravated battery was listed after the attempted manslaughter option. He avers that lesser offenses must be listed on a verdict form in descending order by degree of offense; because aggravated battery is a second-degree felony (which carries a maximum sentence of fifteen years in prison but was enhanced here by the 10-20-Life statute to a minimum mandatory penalty of twenty-five years in prison), it should have been listed before the attempted manslaughter offense, which is a third-degree felony (carrying a maximum of five years in prison).
An error in the trial court’s listing of lesser-included offenses on a verdict form and in jury instructions is not fundamental error in this district. See Graham v. State, 100 So.3d 755 (Fla. 1st DCA 2012). For that reason, McCoy urges this Court to certify conflict between Graham and the Fifth District’s decision in Thomas v. State, 91 So.3d 880 (Fla. 5th DCA 2012). In Thomas, the defendant was convicted of aggravated battery, but the Fifth District reversed the conviction and sentence. It remanded the case for a new trial, holding. that “the trial court fundamentally erred” in the way it listed the lesser-included offenses because “the jury could reasonably have concluded that the offenses were presented in descending order of seriousness and that attempted voluntary manslaughter was less serious than aggravated battery. As such, it is impossible to determine whether the jury, if given the opportunity, would have ‘pardoned’ the defendant by convicting him of attempted voluntary manslaughter under a proper instruction.” Id. at 881-82. Because the jury was accurately instructed and the evidence supports McCoy’s convictions obtained, we affirm the judgment and sentence at issue, but certify conflict with Thomas v. State, 91 So.3d 880 (Fla. 5th DCA 2012).
AFFIRMED.
LEWIS, B.L. THOMAS, and MAKAR, JJ., concur.
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McCoy v. State, 219 So. 3d 63 (Fla. 2017)…PER CURIAM. We initially accepted jurisdiction to review the decision of the First District Court of Appeal in McCoy v. State, 194 So. 3d 1058 (Fla. 1st DCA 2016), which was certified to be in direct conflict with the decision of the Fifth District Court of Appeal in Thomas v. State, 91 So. 3d 880 (Fla. 5th DCA 2012), See art. V, § 3(b)(4), Fla. Const. Having considered the First District’…
Authorities Cited
- Devore L. Thomas v. State, 91 So. 3d 880 (Fla. 5th DCA 2012)
- Graham v. State, 100 So. 3d 755 (Fla. 1st DCA 2012)