Pignataro v. State, 2D01-3072.

• Decision Date: 24 January 2003
• Docket Number: No. 2D01-3072.,2D01-3072.
• Parties: Philip PIGNATARO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

834 So.2d 965

Philip PIGNATARO, Appellant, v. STATE of Florida, Appellee.

No. 2D01-3072.

District Court of Appeal of Florida, Second District.

January 24, 2003.

James Marion Moorman, Public Defender, Bartow, and Donna S. Koch, Assistant Public Defender, Bartow, for Appellant.

Charlie Crist, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Philip Pignataro challenges his conviction for attempted second-degree murder. We reverse because the trial court committed fundamental error by failing to read the jury instructions for justifiable and excusable homicide.

Pignataro was originally charged with attempted first-degree murder for stabbing Robert Clark, his ex-wife's boyfriend. Although he admitted being involved in the altercation, Pignataro argued self-defense.

During the jury instruction conference, Pignataro's counsel specifically requested, at Pignataro's insistence, that the court give only the attempted first-degree murder instruction and give no instructions on lesser included offenses. Pignataro wanted the jury to be faced with an "all or nothing" option. Following a lengthy bench conference, the trial court ruled that it would instruct only on category one lessers (necessarily included lessers), not category two lessers (permissive lessers). There was no discussion regarding the reading of the definitions included in the homicide instruction, and when instructing the jury, the trial court failed to read the definitions on justifiable and excusable homicide. The jury returned a verdict of guilty to attempted second-degree murder.

The court's failure to read the instructions on justifiable and excusable homicide is fundamental, reversible error. Pursuant to Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999), review denied, 791 So.2d 1103 (Fla.2001), the general rule is that failure to read the definitions of excusable and justifiable homicide in all murder and manslaughter cases is fundamental error. See also Damoulakis v. State, 814 So.2d 1204 (Fla. 2d DCA 2002)

; Philippe v. State, 795 So.2d 173 (Fla. 3d DCA 2001). But see Pena v. State, 829 So.2d 289, 295 (Fla. 2d DCA 2002) (certifying the following question as a matter of great public importance: "Is it fundamental error for a trial court to omit instructions on excusable and justifiable homicide when a defendant is charged and convicted of drug-distribution, first-degree murder under section 782.04(1)(a)(3), Florida Statutes (1999), and the factual circumstances do not support any jury argument relying upon the excusable or justifiable homicide instructions?" (Capitalized in original.)).

Although there is an exception to this rule when defense counsel "affirmatively agrees to the omission or the alteration of a jury instruction, ... counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively...