JEFF DAVIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by refusing to give a requested jury instruction on the defense of alibi when sufficient evidence was presented to raise the issue for the jury.
The appellant was charged with robbery and presented an alibi defense supported by four witnesses, including his girlfriend who testified to his where…
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The appellant was charged with robbery and found guilty by a jiiry. He was sentenced to a ten year term in the state prison. On this appeal appellant’s first point urges error upon the refusal of the trial court to give his requested instruction upon the defense of alibi. We hold that the instruction should have been given and that the error was prejudicial. Therefore, we reverse.
Appellant’s only defense in the trial court was predicated upon the claim of alibi. In support of his claimed alibi, appellant presented four witnesses. Only one of these, his girlfriend, testified that she was with him at the time that the crime was said to have been committed. Based upon this testimony, appellant requested the court to give the standard jury instruction, Criminal S.J.I. 2.10(a), upon the defense of alibi. The trial judge refused to give the instruction. Error has been assigned and properly argued.
The trial judge should have given the instruction because it is not his function to weigh the evidence and decide whether the charge shall be given in some cases and not in others. The instruction should be given in every case where there is sufficient evidence to take the issue to the jury. Long v. State, 42 Fla. 509, 28 So. 775 (1900); Watson v. State, Fla.App.1967, 200 So.2d 270. Having held that reversible error appears, we do not consider appellant’s second point. Accordingly, the judgment and sentence are reversed and this cause is remanded to the trial court for the purpose of granting appellant a new trial.
Reversed and remanded for new trial.
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Palmes v. State, 397 So. 2d 648 (Fla. 1981)…girlfriend dispose of the body. It is axiomatic that a defendant is entitled to a jury instruction on the theory of his defense. Florida courts have reversed convictions where juries were not instructed about the defenses of alibi, Davis v. State, 254 So. 2d 221 (Fla. 3d DCA 1971); Watson v. State, 200 So. 2d 270 (Fla. 2d DCA 1967); coercion, Koontz v. State, 204 So. 2d 224 (Fla. 2d DCA 1967), entrapment, Kwasniewski v. State, 303 So. 2d 373 (Fla. 1st DCA 1974); Stiglitz v. State, 270 So. 2d 410 (Fla. 4th D…
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Arboleda v. State, 645 So. 2d 48 (Fla. 3d DCA 1994)…(“It is axiomatic that a defendant is entitled to a jury instruction on the theory of his defense if there is evidence in the record to support it.”) (citations omitted); see also McCoy v. State, 493 So. 2d 1093 (Fla. 4th DCA 1986); Davis v. State, 254 So. 2d 221 (Fla. 3d DCA 1971). Here, the defendant’s testimony directly concerned his intent to traffic in cocaine. This court also previously has noted that the 1987 amendment to section 983.12 may well have abrogated the Dominguez rule, Ledo v. State, 587 So…
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Hudson v. State, 381 So. 2d 344 (Fla. 3d DCA 1980)…s not the function of the trial judge to weigh the evidence and select some cases in which to give the alibi instruction. The instruction should be given in every case where there is sufficient evidence to take the issue to the jury. Davis v. State, 254 So. 2d 221 (Fla. 3d DCA 1971). Adams v. State, 28 Fla. 511, 542, 10 So. 106, 114 (Fla.1891), holds: . evidence in support of an alibi need not be absolutely clear. It is sufficient if there is enough to produce in the minds of the jury a reasonable doubt as…
Authorities Cited
- Long v. State, 42 Fla. 509 (Fla. 1900)
- Watson v. State, 200 So. 2d 270 (Fla. 2d DCA 1967)