Avila v. State, No. 98-1971.

CourtCourt of Appeal of Florida (US)
Writing for the CourtSTONE, J.
Citation745 So.2d 983
Decision Date01 September 1999
Docket NumberNo. 98-1971.
PartiesHenry Blanco AVILA, Appellant, v. STATE of Florida, Appellee.

745 So.2d 983

Henry Blanco AVILA, Appellant,
v.
STATE of Florida, Appellee

No. 98-1971.

District Court of Appeal of Florida, Fourth District.

September 1, 1999.


745 So.2d 984
Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant

Robert A. Butterworth, Attorney General, Tallahassee, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, for appellee.

STONE, J.

We affirm Avila's conviction on charges of second-degree felony murder, armed burglary, and attempted robbery. The "victim" of the felony murder was Avila's co-perpetrator, Chavez, who was shot by the homeowner in the course of Avila and Chavez's commission of the burglary and attempted robbery.

The trial judge recognized that neither excusable nor justifiable homicide would be a defense to second-degree felony murder and that manslaughter is not a lesser-included offense to second-degree felony murder; accordingly, instructions to the jury did not include a charge on excusable and justifiable homicide.

Additionally, the trial judge instructed the jury as follows on reasonable doubt, deviating from the standard instruction by substituting "must" for "should" where noted in bold:

If you have a reasonable doubt as to the material allegations contained within the information, you must find the defendant not guilty. If you have no reasonable doubt as to the material allegations contained within the information, then you must find the defendant guilty.

Avila's objection to the use of the word "must" was overruled.

As a general rule, in homicide trials in which manslaughter appears on the verdict form, either as charged or as a lesser offense, the jury must be instructed as to the definitions of justifiable and excusable homicide. See State v. Lucas, 645 So.2d 425 (Fla.1994); State v. Smith, 573 So.2d 306 (Fla.1990). Manslaughter is a residual offense and can only be fully defined by exclusion of the properly explained defenses of excusable and justifiable homicide. See Lucas.

However, as the trial court recognized, where manslaughter is not a lesser-included offense to the degree of homicide charged, as in second-degree felony murder, there is no logical basis for requiring instruction on the definitions of excusable and justifiable homicide. In Hamilton v. State, 645 So.2d 555 (Fla. 2d DCA 1994), opinion modified on other grounds, 660 So.2d 1038 (Fla.1995), also a second-degree felony murder case, the...

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10 practice notes
  • In re Standard Jury Instructions in Criminal Cases—Report 2017-06, No. SC17–1740
    • United States
    • United States State Supreme Court of Florida
    • February 8, 2018
    ...February 2013, no case has decided whether knowledge of the victim's status is an element under Fla. Stat. § 782.065.* Avila v. State , 745 So.2d 983 (Fla. 4th DCA 1999) indicates that manslaughter is not a Category One lesser included offense of second degree felony murder, but see State v......
  • Dean v. State, No. SC16–1314
    • United States
    • United States State Supreme Court of Florida
    • August 31, 2017
    ...the instruction. Dean, 199 So.3d at 935. The Fourth District affirmed the trial court's ruling, citing its decision in Avila v. State, 745 So.2d 983 (Fla. 4th DCA 1999), in which it stated that " ‘manslaughter is not a lesser-included offense’ of ‘second-degree felony murder.’ " I......
  • In re Standard Jury Instructions in Criminal Cases—Report Number 2013–03, No. SC13–1254.
    • United States
    • United States State Supreme Court of Florida
    • August 28, 2014
    ...October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.FN* Avila v. State, 745 So.2d 983 (Fla. 4th DCA 1999) indicates that manslaughter is not a Category One lesser included offense of second degree felony murder, but see State ......
  • Chesnoff v. State, No. 5D02-1763.
    • United States
    • Court of Appeal of Florida (US)
    • March 21, 2003
    ...them.'" Heck v. State, 774 So.2d 844, 845 (Fla. 4th DCA 2000) (quoting State v. Bryan, 287 So.2d 73, 75 (Fla.1973); Avila v. State, 745 So.2d 983, 985 (Fla. 4th DCA 1999)). "If jury instructions, viewed as a whole, fairly state the applicable law to the jury, the failure to give p......
  • Request a trial to view additional results
10 cases
  • In re Standard Jury Instructions in Criminal Cases—Report 2017-06, No. SC17–1740
    • United States
    • United States State Supreme Court of Florida
    • February 8, 2018
    ...February 2013, no case has decided whether knowledge of the victim's status is an element under Fla. Stat. § 782.065.* Avila v. State , 745 So.2d 983 (Fla. 4th DCA 1999) indicates that manslaughter is not a Category One lesser included offense of second degree felony murder, but see State v......
  • Dean v. State, No. SC16–1314
    • United States
    • United States State Supreme Court of Florida
    • August 31, 2017
    ...the instruction. Dean, 199 So.3d at 935. The Fourth District affirmed the trial court's ruling, citing its decision in Avila v. State, 745 So.2d 983 (Fla. 4th DCA 1999), in which it stated that " ‘manslaughter is not a lesser-included offense’ of ‘second-degree felony murder.’ " I......
  • In re Standard Jury Instructions in Criminal Cases—Report Number 2013–03, No. SC13–1254.
    • United States
    • United States State Supreme Court of Florida
    • August 28, 2014
    ...October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.FN* Avila v. State, 745 So.2d 983 (Fla. 4th DCA 1999) indicates that manslaughter is not a Category One lesser included offense of second degree felony murder, but see State ......
  • Chesnoff v. State, No. 5D02-1763.
    • United States
    • Court of Appeal of Florida (US)
    • March 21, 2003
    ...them.'" Heck v. State, 774 So.2d 844, 845 (Fla. 4th DCA 2000) (quoting State v. Bryan, 287 So.2d 73, 75 (Fla.1973); Avila v. State, 745 So.2d 983, 985 (Fla. 4th DCA 1999)). "If jury instructions, viewed as a whole, fairly state the applicable law to the jury, the failure to give p......
  • Request a trial to view additional results

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