Martin v. State, 47343

• Citation: 342 So.2d 501
• Decision Date: 03 February 1977
• Docket Number: No. 47343,47343
• Parties: Oscar Milton MARTIN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 501

342 So.2d 501

Oscar Milton MARTIN, Petitioner, v. STATE of Florida, Respondent.

No. 47343.

Supreme Court of Florida.

Feb. 3, 1977.

David J. Busch, Asst. Public Defender, and Ted Mack, Sp. Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.

SUNDBERG, Judge.

Petitioner seeks certiorari review of the decision of the District Court of Appeal, First District, which affirmed his conviction of third degree murder. We have jurisdiction of this cause under Article V, Section 3(b)(3), Florida Constitution, because the decision of the District Court, reported at 310 So.2d 747, conflicts 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 death of one William Peck. At the close of the evidence at petitioner's trial, petitioner's attorney requested an instruction on aggravated assault as a lesser included offense of second degree murder. The court refused to give this instruction, and defense counsel duly objected. Martin was convicted of murder in the third degree. The District Court affirmed on appeal, and that decision is the subject of this review.

Petitioner asserts that under Rule 3.490, Fla.R.Crim.P., and Brown v. State, 206 So.2d 377 (Fla.1968) (hereinafter Brown I), the jury should have been instructed on aggravated assault as a lesser included offense of second degree murder. In Brown I, Justice Thornal enumerated the four categories of lesser included offenses. Category four, which the parties agree is the relevant category in this cause, includes offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence adduced at trial. If the accusation (allegata) contains the necessary elements of a specific lesser included offense, and these elements are supported by the evidence (probata), then the jury should be instructed on that offense. Id at 383.

Both petitioner and respondent dedicate substantial portions of their briefs to argument regarding the sufficiency of the allegata and probata needed to support an instruction on aggravated assault. However, a careful reading of our decision in Brown v. State, 245 So.2d 68 (Fla.1971) (hereinafter Brown II) obviates such discussion. In this case, it is specifically held that in cases involving homicide, proper jury instructions are limited to those charges involving lawful and unlawful homicide. In reaching this decision, the Court quoted Sadler v. State, 222 So.2d 797, 799--800 (Fla.2d DCA 1969), in part as follows:

"The trial judge did appropriately instruct the jury as to all degrees of murder, manslaughter, justifiable homicide, and excusable homicide, all having to do with The death of the victim.

"What we have here was either unlawful homicide or lawful homicide. The Death of human being at the hands of defendant Sadler was concededly involved. If defendant's contention as to 'lesser included offenses' is sound, then the trial Judge would have been required, upon request, to run down the gamut of the criminal lexicon to minor petty offenses such as disorderly conduct or disturbing the peace. This was a death case, not an assault case. We hold there is no merit to this point." (emphasis in the original) 245 So.2d at 75.

The above rationale, which was enunciated in the Sadler case, adopted by this Court in Brown II, and followed by the First District in the case Sub judice, is eminently sensible. While aggravated assault may technically qualify as a category four lesser included offense of murder, no rational purpose is served by instructing on aggravated assault. We have in the past denounced the practice in which a trial judge unilaterally determines that there is such overwhelming evidence to convict on the crime charged, that he refuses to instruct the jury on a lesser offense. State v. Terry, 336 So.2d 65 (Fla.1976). As pointed out in Hand v. State, 199 So.2d 100, 102 (Fla.1967):

'In...