Franklin v. State, 52971
| Decision Date | 06 August 1981 |
| Docket Number | No. 52971,52971 |
| Citation | 403 So.2d 975 |
| Parties | George Victor FRANKLIN, a/k/a Charles Gordon, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, Jerry L. Schwarz and Ellen S. Morris, Asst. Public Defenders, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
Franklin appeals his conviction of first-degree murder and sentence of death. We have jurisdiction 1 and reverse.
An indictment charged Franklin and Roy Render with one count of first-degree murder each for the shooting death of a liquor store owner. The jury acquitted Render, but found Franklin guilty and recommended the death penalty. The trial court concurred, finding four aggravating factors and no mitigating circumstances, and imposed the death sentence.
At trial the state proceeded on alternative theories of premeditation and felony murder. At the charge conference, however, neither of the defense attorneys nor the prosecutor requested an instruction defining the underlying felony, robbery. The trial court did not propose such a charge, and, consequently, the jury received no instruction on the underlying felony.
Franklin contends that failing to instruct on the underlying felony in a felony-murder case requires reversal. We agree.
This Court recently found the complete failure to give any instruction on an underlying felony to be fundamental error. State v. Jones, 377 So.2d 1163 (Fla.1979). Even though Franklin raises this point for the first time in this Court while the prosecutor in Jones brought the omission to the trial court's attention, Jones controls the instant case.
We reject the state's argument that Jones is inapplicable to the instant case. Relying on Frazier v. State, 107 So.2d 16 (Fla.1958), the state contends that the prosecution's presentation of evidence sufficient to show premeditation renders harmless any error in the felony-murder instruction. When the state seeks a conviction of first-degree murder on the dual theories of premeditation and felony murder and there is error because the trial judge fails to instruct on the underlying felony, the conviction can stand only if the error is harmless. We adopt the harmless error test enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The reviewing court must be satisfied beyond a reasonable doubt that the failure to so instruct was not prejudicial and did not contribute to the defendant's conviction.
In this case the killing resulted from an exchange of bullets when Franklin allegedly sought to rob the victim's liquor store. The primary thrust of the state's case was felony murder. In closing argument felony murder was the dominant theme, and, indeed, the facts demonstrate felony murder more clearly than premeditation. It is at least as likely as not that the jury based its verdict on felony murder. The failure to instruct on the underlying felony cannot be considered harmless error in this case. Compare Jones with Knight v. State, 394 So.2d 997 (Fla.1981).
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Parker v. Secretary for Dept. of Corrections
...claim, but rather it was the more prominent of the two arguments presented in Claim II.4 Parker relied most heavily on Franklin v. Florida, 403 So.2d 975 (Fla.1981), a case in which the Florida Supreme Court held that an error in the jury instructions on felony murder was fundamental error ......
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Taylor v. State
...instruct on the underlying felony will invalidate the conviction unless the court can determine the error is harmless. Franklin v. State, 403 So.2d 975, 976 (Fla.1981). Aggravated child abuse is listed as one of the offenses which will support a first-degree murder verdict if a death occurs......
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Occhicone v. State
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Washington v. State, 59748
...on a theory of felony murder, the judge was not required to instruct the jury on any of the enumerated felonies. See Franklin v. State, 403 So.2d 975 (Fla.1981). Although we affirm appellant's conviction, we conclude that his sentence must be reduced to life imprisonment. At the sentencing ......