Linehan v. State

• Decision Date: 29 August 1985
• Docket Number: No. 64609,64609
• Citation: 10 Fla. L. Weekly 439,476 So.2d 1262
• Parties: 10 Fla. L. Weekly 439 Mitchell O. LINEHAN, Petitioner/Cross-Respondent, v. STATE of Florida, Respondent/Cross-Petitioner.
• Court: Florida Supreme Court

Page 1262

476 So.2d 1262

10 Fla. L. Weekly 439

Mitchell O. LINEHAN, Petitioner/Cross-Respondent, v. STATE of Florida, Respondent/Cross-Petitioner.

No. 64609.

Supreme Court of Florida.

Aug. 29, 1985.

Rehearing Denied Oct. 28, 1985.

Jerry Hill, Public Defender, and Allyn Giambalvo, Asst. Public Defender, Tenth Judicial Circuit, Clearwater, for petitioner/cross-respondent.

Jim Smith, Atty. Gen. and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent/cross-petitioner.

OVERTON, Justice.

Petitioner seeks review of Linehan v. State, 442 So.2d 244 (Fla. 2d DCA 1983), in which the Second District Court of Appeal upheld petitioner's conviction for first-degree felony murder and certified the following questions as being of great public importance: ^*

1. Whether voluntary intoxication is a defense to arson or to any crime.

2. Whether voluntary intoxication is a defense to first degree (felony) murder.

3. Whether a jury instruction on second degree (depraved mind) murder is necessary, if supported by the evidence, when defendant is charged with first degree (felony) murder.

442 So.2d at 256.

The facts of this case are as follows. Petitioner was indicted for arson under section 806.01, Florida Statutes (1981), and first-degree felony murder under section 782.04(1)(a), Florida Statutes (1981). He confessed to starting a fire in his girlfriend's apartment which eventually engulfed the entire building and resulted in one death.

Testimony admitted at trial indicated that petitioner had been intoxicated when he set the fire. Based on this testimony, petitioner requested a jury instruction on voluntary intoxication as a defense. The trial court denied this request. In so ruling, the court held that, because arson is not a specific intent crime, the defense is not available against a charge of first-degree felony murder based upon the underlying felony of arson.

Petitioner also requested an instruction on second-degree (depraved mind) murder as a lesser included offense of felony murder. This request was also denied. The trial court noted that second-degree (depraved mind) murder is not listed as a lesser included offense of first-degree felony murder for which instructions must be given under the Florida Standard Jury Instructions.

The jury found petitioner guilty as charged and, at sentencing, the trial court merged the two offenses and sentenced petitioner to a life term with a minimum mandatory 25-year sentence.

On appeal, the district court affirmed the trial court's denial of the voluntary intoxication instruction and held that (1) arson under section 806.01 is a general intent crime to which voluntary intoxication is not a defense and (2) voluntary intoxication is not a defense to first-degree felony murder when it would not be a defense to the underlying felony. The district court further determined that second-degree (depraved mind) murder was a lesser included offense of this felony murder which could be supported by the evidence in this case and held that the trial court's failure to instruct the jury on second-degree (depraved mind) murder was reversible error, requiring a new trial.

For the reasons expressed below, we answer the certified questions as follows: (1) the defense of voluntary intoxication does not apply to a general intent crime such as arson; (2) voluntary intoxication is not a defense to felony murder when, as in this case, the underlying felony is a general intent crime; and (3) second degree murder is a necessarily lesser included offense of first-degree felony murder.

With regard to the first certified question, we note that this Court has long recognized voluntary intoxication as a defense to specific intent crimes. Cirack v. State, 201 So.2d 706 (Fla.1967); Garner v. State, 28 Fla. 113, 9 So. 835 (1891). In Garner we stated that when

a specific or particular intent is an essential or constituent element of the offense, intoxication, though voluntary, becomes a matter for consideration ... with reference to the capacity or ability of the accused to form or entertain the particular intent, or ... whether the accused was in such a condition of mind to form a premeditated design. Where a party is too drunk to entertain or be capable of forming the essential particular intent, such intent can of course not exist, and no offense of which such intent is a necessary ingredient, [can] be perpetrated.

28 Fla. at 153-54, 9 So. at 845.

The courts of this state have applied this standard to allow the voluntary intoxication defense in cases involving specific intent crimes. See, e.g., Cirack (first-degree murder); Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909) (breaking and entering with intent to commit misdemeanor); Heathcoat v. State, 430 So.2d 945 (Fla. 2d DCA 1983) (burglary, robbery, aggravated battery, and aggravated assault); Link v. State, 429 So.2d 836 (Fla. 3d DCA 1983) (theft); Williams v. New England Mutual Life Insurance Co., 419 So.2d 766 (Fla. 1st DCA 1982) (aggravated assault); Harris v. State, 415 So.2d 135 (Fla. 5th DCA), review denied, 419 So.2d 1198 (Fla.1982) (burglary and battery); Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981) (robbery); Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA), review denied, 402 So.2d 613 (Fla.1981) (battery on police officer); Presley v. State, 388 So.2d 1385 (Fla. 2d DCA 1980) (burglary); Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979) (escape from protective custody), overruled on other grounds, Parker v. State, 408 So.2d 1037 (Fla.1982).

Florida courts have rejected the voluntary intoxication defense in the following cases involving general intent crimes. Gentry v. State, 437 So.2d 1097 (Fla.1983) (attempted second-degree murder); Askew v. State, 118 So.2d 219 (Fla.1960) (rape); Folks v. State, 85 Fla. 288, 95 So. 619 (1923) (manslaughter); Link v. State, 429 So.2d 836 (Fla. 3d DCA 1983) (possession of methaqualudes); Williams v. State, 250 So.2d 11 (Fla. 3d DCA 1971) (violence while resisting arrest); Crusoe v. State, 239 So.2d 147 (Fla. 2d DCA 1970) (passing forged bank checks).

As noted above, voluntary intoxication has been recognized in this state for more than ninety years as a valid defense to specific intent crimes. See Garner. We emphasize that voluntary intoxication is an affirmative defense and that the defendant must come forward with evidence of intoxication at the time of the offense sufficient to establish that he was unable to form the intent necessary to commit the crime charged. We note that evidence of alcohol consumption prior to the commission of a crime does not, by itself, mandate the giving of jury instructions with regard to voluntary intoxication. As this Court determined in Jacobs v. State, 396 So.2d 1113 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981), where the evidence shows the use of intoxicants but does not show intoxication, the instruction is not required.

We reiterate that the intoxication defense applies only to specific intent crimes. In the instant case, petitioner was charged with arson under section 806.01 and felony murder, with arson being the underlying felony. Section 806.01 reads, in part: "Any person who willfully and unlawfully, by fire or explosion, damages or causes to be damaged ... [a] dwelling, whether occupied or not, or its contents ... is guilty of arson in the first degree which constitutes a felony of the first degree...." Petitioner argues that the words "willfully and unlawfully" are words of specific intent and, therefore, that voluntary intoxication should be a valid defense to arson. We disagree. Arson was a general intent crime under the common law. See W. Burdick, The Law of Crime § 692 (1946). At common law, arson was defined as "the wilfull and malicious burning of a dwelling house, or outhouse within the curtilage of a dwelling of another." Duke v. State, 132 Fla. 865, 870, 185 So. 422, 425 (1938). See also Sawyer v. State, 100 Fla. 1603, 132 So. 188 (1931); Williams v. State, 100 Fla. 1054, 132 So. 186 (1930). Under this definition, a specific intent to burn is not required. See Dorroh v. State, 229 Miss. 315, 90 So.2d 653 (1956); Crow v. State, 136 Tenn. 333, 189 S.W. 687 (1916). We find that the present statutory definition of arson does not materially vary from the common law definition with regard to the requisite intent. There is no indication that the legislature intended to change the common law intent requirement. Accordingly, we hold that arson under section 806.01 is a general intent crime and, therefore, voluntary intoxication is not available as a defense to arson.

The second question certified by the district court requires us to determine whether voluntary intoxication is a defense to first-degree felony murder. In Jacobs v. State, this Court considered whether the intoxication defense applied to felony murder where the underlying felony was robbery. We held in that case that a defendant charged with first-degree felony murder, with robbery being the underlying felony, may defend himself on the basis that he was too intoxicated to form the intent to commit the underlying felony of robbery. 396 So.2d at 1115. At common law robbery was a specific intent crime. J. Miller, Handbook of Criminal Law §§ 123-23 (1934). We conclude that when the underlying felony upon which a felony murder charge is based is a specific intent offense, the defense of voluntary intoxication may apply to felony murder, but when the underlying felony is a general intent crime, the voluntary intoxication defense does not apply. We reject the suggestion that we should eliminate or modify the defense of voluntary intoxication, although we recognize that courts are having difficulty determining whether a particular offense is a specific or general intent crime.

The third question concerns the need to instruct the jury on second-degree murder as a lesser included offense of first-degree murder. We agree with the district court that the...