OSCAR MILTON MARTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court did not err in refusing to instruct the jury on aggravated assault.
Defendant was charged with second-degree murder and convicted of third-degree murder. Defendant requested a jury instruction on aggravated assault, wh…
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MILLS, Judge.
Defendant-appellant was charged with murder in the second degree'and convicted of murder in the third degree. At the conference on instructions, defendant requested the trial court to charge the jury on aggravated assault. The trial court’s denial of this request is the sole issue raised on this appeal.
The trial court properly instructed the jury as to all applicable degrees of murder, manslaughter, justifiable homicide, and excusable homicide, all having to do with the death of the victim. The requested instruction on aggravated assault was not necessarily included in murder, or lawful or unlawful homicide. Sadler v. State, 222 So. 2d 797 (Fla.App.1969).
What we have here is the death of a human being which was either unlawful homicide or lawful homicide. The trial court’s concern was to properly instruct the jury as to the various applicable degrees of unlawful homicide, and of justifiable and excusable homicide. This the trial court did.
Affirmed.
BOYER, Acting C. J., and McCORD, J., concur.
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Martin v. State, 342 So. 2d 501 (Fla. 1977)…of the District Court of Appeal, First District, which affirmed his conviction of third degree murder. We have jurisdiction of this cause under Article V, Section 3(b)(3), Florida Constitution, because the decision of the District Court, reported at 310 So. 2d 747, conflicts with Appell v. State, 250 So. 2d 318 (Fla. 4th DCA 1971), Elmore v. State, 291 So. 2d 617 (Fla. 4th DCA 1974), and Herman v. State, 275 So. 2d 264 (Fla. 4th DCA 1973). On October 12, 1973, petitioner Martin was charged by information wit…
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Mitchell v. State, 321 So. 2d 108 (Fla. 1st DCA 1975)…l into category 3; that they are all necessarily included offenses of murder in the second degree and, therefore, charges upon them were mandatory. Such a ruling would be contrary to our ruling in Anderson, supra, in Martin v. State, Fla.App. (1st), 310 So. 2d 747 (1975), and contrary to the ruling of the Second District Court of Appeal in Sadler v. State, Fla.App. (2d), 222 So. 2d 797 (1969); and contrary to the Supreme Court’s ruling in a later Brown case, Brown v. State, Fla., 245 So. 2d 68 (1971), but wou…
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Jackson v. State, 336 So. 2d 390 (Fla. 3d DCA 1976)…ts of counsel and have concluded that reversible error has not been shown. See Gilford v. State, Fla.1975, 313 So. 2d 729; Mitchell v. State, Fla.App.1975, 321 So. 2d 108; Hanna v. State, Fla.App.1975, 319 So. 2d 586; Mizell v. State, Fla.App. 1975, 310 So. 2d 747. Therefore the judgment and sentence are affirmed. Affirmed.…
Authorities Cited
- Sadler v. State, 222 So. 2d 797 (Fla. 2d DCA 1969)