Dean v. State
| Decision Date | 18 May 2016 |
| Docket Number | No. 4D14–681.,4D14–681. |
| Citation | 199 So.3d 932 |
| Parties | Christopher T. DEAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
The central issue in this case is whether the trial court erred in failing to instruct the jury on manslaughter as a category one lesser included offense of second-degree felony murder. We hold that, at the time of trial, the law in this district supported the trial judge's decision not to give the instruction.
Appellant Christopher Dean was found guilty of burglary and second-degree felony murder after he and Eric Flint burglarized an apartment and Flint was killed by the victim of the burglary during a high speed chase while attempting to flee the scene. Originally, we affirmed the convictions. Dean v. State, 82 So.3d 851 (Fla. 4th DCA 2011) (Dean I ). However, we later granted a petition alleging ineffective assistance of appellate counsel and remanded the case for a new trial. Dean v. State, 124 So.3d 997 (Fla. 4th DCA 2013).
On retrial, the evidence was largely the same as that described in Dean I, 82 So.3d at 851–52.
Appellant was charged with second-degree felony murder in violation of section 782.04(3)(e), Florida Statutes (2014), which states:
When a human being is killed during the perpetration of, or during the attempt to perpetrate, any [burglary] by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony commits murder in the second degree....
At the charge conference, defense counsel sought an instruction on manslaughter and culpable negligence as lesser included offenses of second-degree felony murder. Manslaughter is the “killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification ... and in cases in which such killing shall not be excusable homicide or murder ....” § 782.07(1), Fla. Stat. (2014).
The state argued that neither manslaughter nor culpable negligence would be applicable because both would require that appellant be the one who killed Flint. The trial court agreed with the state and denied the request.
“Lesser included offenses fall into two categories: necessary and permissive.”
Sanders v. State, 944 So.2d 203, 206 (Fla.2006). “Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense.” Id. “A permissive lesser included offense exists when ‘the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetuated once the greater offense has been.’ ” Id. State v. Wimberly, 498 So.2d 929, 932 (Fla.1986).
At the time of trial, our decision in Avila v. State, stated, in no uncertain terms that “manslaughter is not a lesser-included offense” of “second-degree felony murder.” 745 So.2d 983, 984 (Fla. 4th DCA 1999). Like this case, Avila involved two perpetrators who committed a burglary and attempted robbery and the burglary victim shot one of the perpetrators in the course of the commission of the two crimes. Id. Avila supports the trial court's ruling on appellant's request for a manslaughter instruction.
Given Avila, we disagree with appellant's contention that, at the time of trial, manslaughter was a category one lesser included offense of second degree felony murder. Reduced to its essence, manslaughter requires the commission of an act that directly causes the death of another. See Tyus v. State, 845 So.2d 318, 321 (Fla. 1st DCA 2003) (); State v. Hare, 190 Neb. 339, 343, 208 N.W.2d 264 (Neb.1973) (). Second-degree felony murder, on the other hand, requires the commission of an enumerated felony, with the death occurring “during the perpetration of” the felony, caused by a person not engaged in the perpetration of the felony. Unlike manslaughter, for second-degree felony murder there is no direct casual connection between the death of the victim and an act of the defendant. Manslaughter is thus not “always subsumed” within second-degree felony murder, because the act that caused death is by definition committed by a person who had nothing to do with the commission of the underlying felony. We believe Avila to have been correctly decided.
Appellant points to the Florida Standard Jury Instruction (Criminal) 7.5, which the Florida Supreme Court authorized “for publication and use” after the trial in this case, in August 2014. In re Standard Jury Instructions in Criminal Cases–Report No. 2013–03, 146 So.3d 1110, 1110 (Fla.2014) (Mem). That instruction lists manslaughter as a category one lesser included offense of second degree felony murder. Id. at 1116. Attached to this listing is this footnote:
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. Montgomery, 39 So.3d 252 (Fla.2010).
This reference to Avila is curious, because that case held manslaughter was not a category one lesser included offense of second degree felony murder. The signal “but see” preceding the citation to Montgomery suggests that Montgomery impacted Avila in some way. However, Montgomery was a case where the main charge was first degree murder, not second degree felony murder, and the Supreme Court stated that “[m]...
To continue reading
Request your trial
-
Dean v. State
...RespondentPER CURIAM.This case is before the Court for review of the decision of the Fourth District Court of Appeal in Dean v. State, 199 So.3d 932 (Fla. 4th DCA 2016). In its decision, the district court ruled upon the following question, which it subsequently certified to be of great pub......
-
Dean v. State
...plea negotiations." Dean II , 124 So. 3d at 997. After resentencing, we again affirmed Dean's life sentence, Dean v. State , 199 So. 3d 932, 936 (Fla. 4th DCA 2016) (" Dean III "), but the Florida Supreme Court reversed and remanded for resentencing, Dean v. State , 230 So. 3d 420, 425 (Fla......
- Dean v. State
-
Franklin v. State, Case No. 2D17-2958
...second-degree felony murder and, therefore, the trial court was required to give the instruction." Id. at 422 (citing Dean v. State, 199 So.3d 932, 935 (Fla. 4th DCA 2016) ).Yet, despite its holding that manslaughter was a necessarily included lesser offense, on which failure to give a requ......
-
The trial (conduct of trial, jury instructions, verdict)
...Held: At the time of trial, manslaughter was not a category one lesser-included offense of second-degree felony murder. Dean v. State, 199 So. 3d 932 (Fla. 4th DCA 2016) Reading a willful blindness instruction to the jury violated the defendants right to a fair trial and due process because......