Moyer v. State, 88-2342
| Decision Date | 08 February 1990 |
| Docket Number | No. 88-2342,88-2342 |
| Parties | 15 Fla. L. Weekly D370 Timothy Roger MOYER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender and Glen P. Gifford, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., and Laura Griffin, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant, Timothy Roger Moyer (Moyer), appeals his convictions for attempted manslaughter with a weapon and engaging in a criminal offense with a weapon. 1 We affirm the attempted manslaughter conviction but reverse the conviction for engaging in a criminal offense with a weapon.
Tommy Williamson and some friends were outside a drinking establishment repairing a flat tire. Some girls in the group were approached by a stranger who became upset and unruly when he was not welcomed by them. Tommy walked over to where the girls were and attempted to drive away the intruder. The intruder resisted, and Tommy was stabbed by a sharp knife with a thin blade and severely injured. 2 The intruder fled.
Although Moyer was identified by four witnesses as the one who committed the act, his defense was that he was miles away from the scene with a young woman at the time of the incident. While identity is not an issue in this appeal, the fact that Moyer claimed alibi as a defense is material to our consideration because he claims the court erred in not giving his requested instruction of justifiable use of deadly force when it instructed on manslaughter. The court did give the short instruction on excusable and justifiable homicide as a part of the manslaughter charge, but refused to instruct on justifiable use of deadly force because it was inconsistent with Moyer's alibi defense. How could he not be there and yet justifiably have used deadly force? It is true that inconsistent defenses are allowable in criminal cases where the proof of one does not necessarily disprove the other. Mills v. State, 490 So.2d 204 (Fla.3d DCA 1986), rev. denied 494 So.2d 1153 (1986). But, in this case the defenses are mutually exclusive.
The Florida Supreme Court has held that the trial court must define excusable and justifiable homicide in order to make the manslaughter instruction legally adequate. Rojas v. State, 552 So.2d 914 (Fla.1989). This was done in the present case. The Rojas court refused to rule on whether the trial court must also give the longer instruction on justifiable or excusable homicide where the evidence in the case does not warrant it. This is the issue at bar. Although there was evidence of an...
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