Pope v. State
| Decision Date | 02 October 1984 |
| Docket Number | No. AV-382,AV-382 |
| Citation | 458 So.2d 327 |
| Parties | Ben Ruben POPE, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal from a conviction of attempted premeditated murder. As his sole point on appeal, appellant alleges that the trial court erred in failing to instruct the jury on his defense of voluntary intoxication. We agree and reverse.
Appellant was charged with the nocturnal stabbing of his roommate's girl friend. On the night in question, when the police arrived at the home, appellant stated that he had been to a bar with his brother, become intoxicated, and returned home when the bar closed. The deputy sheriff to whom appellant had spoken testified at trial that he had smelled alcohol on appellant's breath during this exchange. Appellant's brother testified that appellant had been "pretty well intoxicated" that night. The victim's boy friend, who had been asleep in front of the television set when appellant and his brother arrived home from the bar, testified that their raucous behavior awakened him and he had concluded that they had been drinking. Other witnesses who had been in appellant's company at the bar testified that he had been drinking, but disagreed as to the degree of his intoxication. However, the testimony was undisputed that appellant had been drinking beer since early in the afternoon, and had had at least "eight more beers" while he was at the bar with his brother and friends. The trial court found that the requested jury instruction on the voluntary intoxication defense was not supported by the evidence and therefore denied it.
There is no dispute that appellant was charged with a specific intent crime, attempted premeditated murder. Gurganus v. State, 451 So.2d 817 (Fla.1984); Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983); cf. Gentry v. State, 437 So.2d 1097 (Fla.1983). Voluntary intoxication is a defense to any crime requiring specific intent. Gentry; Edwards; Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA 1981); Russell v The testimony in the instant case concerning the degree of appellant's state of intoxication might have been conflicting, but it certainly constituted evidence of intoxication sufficient to go to the jury as an issue of fact. Consequently, the trial court erred in failing to instruct the jury on the defense of voluntary intoxication.
State, 373 So.2d 97 (Fla. 2d DCA 1979). It is axiomatic that a defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such an instruction, and the trial court may not weigh the evidence in determining whether the instruction is appropriate. Smith v. State, 424 So.2d 726 (Fla.1982). The evidence need not be "convincing to the trial court," before the instruction can be submitted to the jury, Edwards, at 359, as it suffices that the defense is "suggested" by the testimony. Mellins, at 1209. " 'However disdainfully the trial Judge may have felt about the merits of such defense from a factual standpoint, however even we may feel about it, is beside the point.' " Laythe v. State, 330 So.2d 113, 114 (Fla. 3d DCA 1976).
REVERSED and REMANDED for a new trial.
ON MOTION FOR REHEARING
The state moves for rehearing alleging that this Court "either overlooked or rejected the State's 'inconsistent defenses' argument." We deny the motion for rehearing but clarify our opinion to accommodate the state's contention.
As the state admits in its motion, it "expended only minimal effort" in its brief on...
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