Niblack v. State, 83-1268
| Decision Date | 20 June 1984 |
| Docket Number | No. 83-1268,83-1268 |
| Citation | 451 So.2d 539 |
| Parties | Sharon M. NIBLACK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
Appellant Sharon M. Niblack contends that the trial court erred in failing to provide a complete reinstruction on manslaughter during her jury trial for murder in the second degree. We agree and, therefore, reverse and remand for a new trial.
The record reflects that the jury interrupted its deliberations to request "clarification of the difference between second-degree murder and manslaughter." The trial judge, who initially had instructed on second degree murder, manslaughter under section 782.11, and justifiable homicide, repeated his instruction on second degree murder and manslaughter but did not reinstruct on justifiable homicide. Defense counsel raised a timely objection to the omission of "any explanation of justification, any explanation of defense."
As the supreme court's holding in Hedges v. State, 172 So.2d 824 (Fla.1965), makes clear, the trial court must instruct on justifiable and excusable homicide in order to provide a complete definition of manslaughter, which is a residual offense. See § 782.07, Fla.Stat. (1981); Cobb v. State, 376 So.2d 230, 231 (Fla.1979) (). Under this court's holding in Pouk v. State, 359 So.2d 929, 930 (Fla.2d DCA 1978), both instructions must be given "even where there is no evidence to support a finding of justifiable or excusable homicide because manslaughter cannot be adequately defined without such an instruction." Accord Delaford v. State, 449 So.2d 983 (Fla. 2d DCA 1984).
In the instant case, appellant objected to the trial court's failure to reinstruct on justifiable homicide; thus, this issue has been preserved for appellate review. See Castor v. State, 365 So.2d 701, 704 (Fla.1978) (). Accordingly, we reverse Niblack's conviction for second degree murder on this basis and remand for a new trial.
Appellant has not provided us with a transcript of the charge conference, and,...
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Harris v. State
...refused to instruct the jury on justifiable and excusable homicide in connection with instruction on manslaughter); Niblack v. State, 451 So.2d 539 (Fla. 2d DCA 1984) (trial court, on reinstructing jury on difference between second-degree murder and manslaughter, failed, over timely objecti......
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Garcia v. State, 87-2543
...on manslaughter was held to be reversible error in a case in which the defendant was convicted of second-degree murder, Niblack v. State, 451 So.2d 539 (Fla. 2d DCA 1984), and one in which the defendant, charged with second-degree murder, was convicted of third-degree murder, Lowe v. State,......
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Rojas v. State
...because of a Hedges error in the manslaughter instruction. E.g., Walker v. State, 520 So.2d 606 (Fla. 1st DCA 1987); Niblack v. State, 451 So.2d 539 (Fla. 2d DCA 1984); Pouk v. State, 359 So.2d 929 (Fla. 2d DCA 1978). In Hedges, the failure to refer to justifiable and excusable homicide whi......
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Alejo v. State, 84-2685
...crime of manslaughter. Hedges v. State, 172 So.2d 824 (Fla.1965); Brown v. State, 467 So.2d 323 (Fla. 4th DCA 1985); Niblack v. State, 451 So.2d 539 (Fla. 2d DCA 1984); Pouk v. State, 359 So.2d 929 (Fla. 2d DCA 1978). In addition, our supreme court has said that the term "culpable negligenc......