Mosely v. State, 95-1365
| Decision Date | 30 October 1996 |
| Docket Number | No. 95-1365,95-1365 |
| Citation | 682 So.2d 605 |
| Parties | 21 Fla. L. Weekly D2340 Michael T. MOSELY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Assistant Attorney General, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Mark C. Menser, Assistant Attorney General, Tallahassee, for Appellee.
Michael T. Mosely, charged with attempted second-degree murder in the shooting of a man during an alleged drug transaction, appeals the jury's verdict finding him guilty of the lesser included offense of attempted manslaughter. We reverse.
At his trial, the judge 1 did not give the standard jury instruction for attempted manslaughter. The judge told the jury, in pertinent part:
Now, before you can find the defendant guilty of attempted manslaughter, the State must prove the following two elements beyond a reasonable doubt.
First, but for the fact that Michael T. Mosely failed, the victim would have died.
Second, the death would have been caused by the intentional act of Michael T. Mosely or the culpable negligence of Michael T. Mosely.
Shortly thereafter, the judge read the jurors the standard jury instruction definition of "culpable negligence." No objection was raised, at the charge conference or in open court, concerning the jury instructions.
It is undisputed that the instruction was error, as the reference permitted the jury to find the defendant guilty of attempted involuntary manslaughter, which is a nonexistent crime. Arline v. State, 550 So.2d 1180 (Fla. 1st DCA 1989).
The State, citing Murray v. State, 491 So.2d 1120 (Fla.1986), argues that the error is not fundamental so the appellant's failure to object at trial prohibits his raising the issue here. The State also argues that because a general verdict was returned and there was no evidence of or argument concerning culpable negligence, the error is harmless. We disagree.
We have previously held that it is fundamental error to instruct the jury that it may find a defendant guilty of attempted manslaughter by culpable negligence. Reid v. State, 656 So.2d 191 (Fla. 1st DCA) rev. denied 663 So.2d 632 (Fla.1995); Arline v. State, 550 So.2d 1180 (Fla. 1st DCA 1989). As we stated in Reid:
The error in the case at bar was fundamental--as it was in Brown [v. State, 550 So.2d 142 (Fla. 1st DCA 1989) ] and Arline--because it simply did not involve a jury instruction that may have misled the jury, as in Murray, but, in fact, it permitted the defendant's conviction of a nonexistent crime.
Likewise, we cannot find that the error was harmless. It is the State's burden to show that the error was harmless beyond a reasonable doubt, i.e., "that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).
The State cites as authority for the proposition that the error was harmless beyond a reasonable doubt the recent decision in Mungin v. State, 21 Fla. L. Weekly S66 (Fla. February 8, 1996), wherein the Supreme Court let stand a first-degree murder conviction despite an erroneous instruction for premeditated murder where there was overwhelming evidence of felony murder to support the general verdict.
The distinction that the State misses is that in Mungin the jury was presented with two legitimate theories of guilt, premeditated murder and felony murder, and there is no evidence to support one theory, but substantial evidence to support the other. In this case, as in Reid and Arline, the jury was instructed on a nonexistent crime. Thus, this case falls within the rule stated in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) overruled in part on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and recently cited in Horn v. State, 677 So.2d 320 (Fla. 1st DCA) review granted Case Nos. 87,788, 87,789, 679 So.2d 774 (Fla. August 27, 1996): "We think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another,...
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...error, notwithstanding the existence of alternative, legitimate theories of guilt the evidence could support. See Mosely v. State, 682 So.2d 605, 607 (Fla. 1st DCA 1996); Arline v. State, 550 So.2d 1180, 1181 (Fla. 1st DCA 1989); see also Horn v. State, 677 So.2d 320, 323 (Fla. 1st DCA 1996......
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