Herman v. State, 71-924
| Decision Date | 28 March 1973 |
| Docket Number | No. 71-924,71-924 |
| Citation | 275 So.2d 264 |
| Parties | John Edward HERMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Walter N. Colbath, Jr., Public Defender, and Charles W. Musgrove, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Andrew I. Friedrich, Asst. Atty. Gen., West Palm Beach, for appellee.
In his appeal from a conviction of second degree murder the defendant assigns as error the refusal of the trial court to charge the jury upon the offense of manslaughter as a lesser degree of homicide and upon the offense of aggravated assault as a lesser included offense as requested by the defendant.
Based upon the clear language of Rule 3.490, FRCrP, 33 F.S.A. (former Section 919.14, F.S.), the recent decisions interpreting crimes divisible into degrees and necessarily included offenses, and the instant facts, we are of the opinion that the trial court erred in failing to charge on the offenses of manslaughter and aggravated assault. Brown v. State, Fla.1968, 206 So.2d 377; Appell v. State, Fla.App.1971, 250 So.2d 318; see also State v. Washington, Fla.1972, 268 So.2d 901; Rayner v. State, Fla.1973, 273 So.2d 759. The fact that a defendant may assert a claim of self-defense does not mitigate the operation of Rule 3.490 or dispense with the duty of the court to charge the jury on all lesser degrees and necessarily included offenses. Cf. Robles v. State, Fla.1968, 210 So.2d 441.
Accordingly, the judgment is reversed and the cause remanded for a new trial consistent with the views expressed herein.
Reversed and Remanded.
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Elmore v. State, 73-225
...State, Fla.1971, 245 So.2d 68. We do not agree that Brown v. State, supra, applies only to the crime of robbery.' See also Herman v. State, Fla.App.1973, 275 So.2d 264; McCullers v. State, Fla.App.1968, 206 So.2d 30, and State v. Anderson, Fla.1972, 270 So.2d 353, 356 Since the case must be......
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Dobbert v. State
... ... In Herman v. State 11 that same court held it reversible error not to instruct on lesser included offenses of manslaughter and aggravated assault whe ... ...
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Martin v. State, 47343
...which Appell v. State, 250 So.2d 318 (Fla.4th DCA 1971), Elmore v. State, 291 So.2d 617 (Fla.4th DCA 1974), and Herman v. State, 275 So.2d 264 (Fla.4th DCA 1973). On October 12, 1973, petitioner Martin was charged by information with second degree murder. This charge arose from the shooting......
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Jefferson v. State, 75--252
...court to instruct upon the degrees of the offense, F.R.Cr.P. 3.490; Parker v. State, 330 So.2d 148 (2nd DCA Fla. 1976); Herman v. State, 275 So.2d 264 (4th DCA Fla.1973); Wilson v. State, 171 So.2d 903 (2nd DCA Fla.1965). This is to be distinguished from the instance where the trial court f......