Linehan v. State, No. 64609

• Court: United States State Supreme Court of Florida
• Writing for the Court: OVERTON; BOYD; SHAW, J., dissents with an opinion, in which ALDERMAN; BOYD; SHAW; ALDERMAN
• Citation: 10 Fla. L. Weekly 439,476 So.2d 1262
• Decision Date: 29 August 1985
• Docket Number: No. 64609
• Parties: 10 Fla. L. Weekly 439 Mitchell O. LINEHAN, Petitioner/Cross-Respondent, v. STATE of Florida, Respondent/Cross-Petitioner.

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.

Page 1263

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

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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...