Holmes v. State, 93-01634
| Decision Date | 01 July 1994 |
| Docket Number | No. 93-01634,93-01634 |
| Parties | 19 Fla. L. Weekly D2581 Robert HOLMES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard J. Sanders, Gulfport, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ron Napolitano, Asst. Atty. Gen., Tampa, for appellee.
Robert Holmes appeals his convictions and sentences for attempted second-degree murder and arson of a dwelling. Holmes raises six issues concerning the trial and sentencing. We agree with Holmes on all but one of his issues and reverse.
Holmes was charged with attempted first-degree murder and arson of a dwelling for shooting his ex-girlfriend and later setting fire to her house. In the information, the attempted murder count specifically alleged the use of a firearm. The jury found Holmes guilty of attempted second-degree murder and arson. The trial court enhanced the attempted murder conviction to a first-degree felony based on the use of a firearm and classified Holmes as a habitual violent felony offender. For this conviction, Holmes was sentenced to life with a minimum term of 30 years. For the arson conviction, he was sentenced to a concurrent term of life but was not habitualized.
First, Holmes argues the trial court erred by failing to conduct a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971). At trial, the victim began to testify about statements that Holmes made on the day of the shooting. Defense counsel objected because he did not believe these statements had been provided by the state. The state responded that it was not required to provide the statements when the victim and her deposition had been available prior to trial. Although a Richardson hearing was requested, the trial court overruled the objection without further inquiry.
When a defendant participates in discovery, the state must furnish the substance of statements made by the defendant. Fla.R.Crim.P. 3.220(b)(1). Contrary to the state's argument at trial, a witness' availability does not satisfy its discovery obligation under this rule. Rainey v. State, 596 So.2d 1295 (Fla. 2d DCA 1992). Contrary to the state's argument on appeal, the objection made in this case was sufficient to bring the possible violation to the trial court's attention and thus trigger the need for further inquiry. See Elledge v. State, 613 So.2d 434 (Fla.1993) (). The trial court's failure to inquire is not subject to a harmless error analysis; it constitutes per se error and requires us to reverse. Smith v. State, 500 So.2d 125 (Fla.1986).
Holmes next argues that the trial court erred by refusing to give a requested instruction on attempted manslaughter. That instruction was appropriate here. Taylor v. State, 444 So.2d 931 (Fla.1983). Attempted manslaughter is only one step removed from the crime for which Holmes was convicted. Failure to give an instruction for an offense one step removed from the conviction constitutes per se reversible error. Cox v. State, 618 So.2d 291 (Fla. 2d DCA 1993).
These errors require reversal and a new trial. On remand, the highest murder charge for which Holmes may be retried is attempted second-degree murder. Marshall v. State, 529 So.2d 797, 797 n. 1 (Fla. 3d DCA 1988). The next two issues are subject to a harmless error analysis. Because we are reversing on the first two errors, we do not decide whether the following, standing alone, would have required reversal.
Holmes argues the trial court erroneously admitted hearsay statements under the excited utterance exception. The trial court allowed a police detective to testify regarding the victim's identification of Holmes as the man who shot her and the circumstances surrounding the shooting. These statements were made at the hospital while the victim was being treated. The interview occurred about an hour-and-a-half after the shooting and the only evidence of the victim's mental state was the detective's observation that she was "upset." They do not qualify as excited utterances because the time between the shooting and the interview allowed an opportunity for reflection or fabrication and removed the indicia of reliability inherent in a spontaneous statement. Lyles v. State, 412 So.2d 458 (Fla. 2d DCA 1982).
Holmes also asserts error in the trial court's refusal to allow...
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Van Loan v. State, 98-02718.
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