Dean v. State, No. 4D14–681.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: GROSS, J.
• Citation: 199 So.3d 932
• Decision Date: 18 May 2016
• Docket Number: No. 4D14–681.
• Parties: Christopher T. DEAN, Appellant, v. STATE of Florida, Appellee.

199 So.3d 932

Christopher T. DEAN, Appellant,
v.
STATE of Florida, Appellee.

No. 4D14–681.

District Court of Appeal of Florida, Fourth District.

May 18, 2016.

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.

GROSS, J.

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.”

199 So.3d 935

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. “The trial judge has no discretion in whether to instruct the jury on a necessarily lesser included offense. Once the judge determines that the offense is a...