Green v. State

• Decision Date: 30 August 1985
• Docket Number: No. 65804,65804
• Parties: 10 Fla. L. Weekly 467 Josh GREEN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 235

475 So.2d 235

10 Fla. L. Weekly 467

Josh GREEN, Petitioner, v. STATE of Florida, Respondent.

No. 65804.

Supreme Court of Florida.

Aug. 30, 1985.

James B. Gibson, Public Defender and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for petitioner.

Jim Smith, Atty. Gen. and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for respondent.

OVERTON, Justice.

This cause is before us on petition to review a decision of the Fifth District Court of Appeal reported as Green v. State, 453 So.2d 526 (Fla. 5th DCA 1984). The district court held that a requested third-degree felony murder jury instruction was properly denied during petitioner's trial for first-degree premeditated murder because third-degree felony murder is not a lesser included offense of first-degree premeditated murder. We find conflict with Williams v. State, 427 So.2d 775 (Fla. 2d DCA), review denied, 433 So.2d 519 (Fla.1983),^* and, although we approve the result reached by the district court in the instant case, we disapprove the reasoning expressed in the opinion of the Fifth District Court of Appeal.

The facts of this case are as follows. Petitioner was charged with first-degree premeditated murder in connection with a shooting death. At the charge conference petitioner requested a jury instruction on third-degree felony murder. The underlying felony asserted by petitioner was the crime of discharging a weapon into an occupied vehicle. The trial court refused the instruction upon a finding that third-degree felony murder is not a lesser included offense of premeditated first-degree murder and only gave instructions for first-degree murder, second-degree murder, and manslaughter. Petitioner was subsequently found guilty of second-degree murder.

On appeal, petitioner challenged the trial court's failure to give the requested instruction. The district court rejected petitioner's argument and, in reliance on the schedule of lesser included offenses published in the Florida Standard Jury Instructions in Criminal Cases (1981 ed.), found that the third-degree felony murder instruction was properly refused because it is not a lesser included offense of premeditated first-degree murder. Further, the court found that the underlying felony of firing at or into an occupied vehicle contained "different statutory elements than simple first-degree murder." 453 So.2d at 526. The district court determined that neither Florida Rule of Criminal Procedure 3.510 or 3.490 required the giving of the requested instruction and concluded that "[t]hird-degree felony murder is not a degree crime of simple premeditated murder." Id. at 528.

We disagree with that part of the district court's opinion which holds that third-degree felony murder is not a lesser included offense of first-degree premeditated murder. Although third-degree felony murder is not a necessarily included offense of first-degree murder, it is, under certain circumstances and evidence, a proper permissive lesser included offense of first-degree murder, requiring a jury instruction to that effect. We realize that the schedule of lesser included offenses in the standard jury instructions, as amended in 1981, includes a separate list of lesser included offenses for first-degree premeditated murder and first-degree felony murder and that third-degree felony murder is listed only as a lesser included offense of first-degree felony murder. This Court has, however, repeatedly explained that a felony murder conviction may be sustained under an indictment for first-degree premeditated murder. See Knight v. State, 338 So.2d 201 (Fla.1976); Everett v. State, 97 So.2d 241 (Fla.1957), cert. denied, 355 U.S. 941, 78 S.Ct. 432, 2 L.Ed.2d 422 (1958); Killen v. State, 92 So.2d 825 (Fla.1957). Further, this Court, in its opinion adopting the amended jury instructions, expressly rejected the recommendation of the Supreme Court Committee on Jury Instructions in Criminal Cases that we recede from Knight and require specific allegations of felony murder in an indictment. In the Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 597 (Fla.1981). It necessarily follows that the lesser included offenses listed under first-degree felony murder may be relevant to a charge of first-degree premeditated murder if the evidence indicates that the homicide occurred during the commission of a felony. See Schedule of Lesser Included Offenses, Florida Standard Jury Instructions in Criminal Cases, comment 6 (1981 ed.). We find that, based on the evidence in this cause, the trial court was correct in refusing to give the instruction. The district court was, however, incorrect in basing its refusal upon a finding that third-degree felony murder is not a lesser included offense of first-degree premeditated murder.

We find that the refusal to give the requested instruction was not reversible error. Amended Florida Rule of Criminal Procedure 3.490, which became effective October 1, 1981, requires the giving of instructions on lesser included offenses only where supported by the evidence. Prior to October 1, 1981, rule 3.490 provided that when the offense charged was divided into degrees the trial court had to give instructions as to all degrees of the offense charged, regardless of whether there was any evidence to support the lesser degrees. The court was obligated under this rule to instruct the jury on first- and second-degree murder, manslaughter, and third-degree murder. See Martin v. State, 342 So.2d 501 (Fla.1977); Brown v. State, 124 So.2d 481 (Fla.1960). Further, under former rule of criminal procedure 3.510, the court was required to instruct on all degrees and all necessarily included lesser offenses, regardless of the evidence.

Rule 3.490 now provides for the determination of the degree of offense for which a defendant may be convicted and reads as follows:

If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.

(Emphasis added.) Rule 3.510, as it is presently written, provides for the determination of lesser included offenses for which a defendant may be convicted and reads, in part, as follows:

Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:

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(b) any offense which as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

(Emphasis added.)

Under these rules, as noted by the Second District Court of Appeal in Williams, a defendant charged with first-degree premeditated murder is entitled to an instruction on the lesser included offense of third-degree felony murder if there is evidence to support such a charge. See also Johnson v. State, 423 So.2d 614 (Fla. 1st DCA 1982). If there is no evidence to support a third-degree felony murder conviction, an instruction on the crime is not required. See Williams, 427 So.2d at 776.

In support of his claim that the third-degree felony murder instruction should have been given, petitioner asserted that evidence was presented to establish the underlying felony of discharging a firearm into an occupied vehicle. The district court in the instant case determined, however, that "the allegations in the indictment and proof at trial established that the victim was killed by Green with a bullet fired from his rifle as she was standing near a truck." 453 So.2d at 527 (emphasis added; footnote omitted). It is unrefuted that the victim was outside the truck when she was shot and that the truck was not occupied at the time of the shooting. Clearly, the evidence does not support the underlying felony urged by petitioner.

For the reasons expressed, we approve the result reached by the district court in the instant case, but disapprove the reasoning expressed in the court's opinion. Further, we approve the Second District Court of Appeal's decision in Williams.

It is so ordered.

BOYD, C.J., and ALDERMAN and McDONALD, JJ., concur.

SHAW, J., concurs in result only with an opinion.

ADKINS and EHRLICH, JJ., concur in result only.

SHAW, Justice, concurring in result only.

The majority reasons that third-degree felony murder is a lesser included offense of first-degree premeditated murder because it is a lesser included offense of first-degree felony murder. I encounter two problems in that reasoning. First, premeditated murder and first-degree felony murder contain different statutory elements and are separate offenses under the Blockburger ¹ test. Even if we assume arguendo that the schedule of lesser included offenses is correct in listing third-degree felony murder as a lesser included offense of first-degree felony murder, it does not logically follow that third-degree felony murder is also a lesser included offense of premeditated murder. In fact, application of the Blockburger test shows that third-degree felony murder can never be a lesser included offense of premeditated murder. Premeditated murder requires premeditation; third-degree felony murder does not. Third-degree felony murder requires commission of the statutory elements of a predicate felony; premeditated murder does not. Each offense contains a statutory element not present in the other and, by definition, they are separate, not lesser included offenses. Thus, the trial court and district court were correct.

The second problem I have with the majority's analysis is its reliance on the schedule of lesser included offenses, particularly the so-called permissive lesser included...