Smith v. State, 5D00-562.
| Citation | 773 So.2d 1278 |
| Decision Date | 29 December 2000 |
| Docket Number | No. 5D00-562.,5D00-562. |
| Parties | Lorenzo SMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
Appellant, Lorenzo Smith ["Smith"], was found guilty of attempted second-degree murder; burglary of a structure while armed; robbery with a firearm; and false imprisonment. On appeal, he contests the homicide conviction.1 We reverse.
On July 14, 1999, Mohammed Rashid ["Rashid"] was working as a night clerk at the Econo Lodge in Osceola, Florida. He testified that around 4:30 a.m., while returning to the front desk from the rest-room, he was attacked by Smith. Rashid testified that Smith grabbed his neck and shot him in the shoulder. Smith then dragged Rashid to the back office where Smith took the register key and wallet from Rashid's pocket. When Smith left the room to search for the register key, Rashid dialed 911 and placed the phone on the counter without speaking to the operator. Rashid testified that Smith dragged him to the safe and demanded the key, which Rashid did not have. Smith told Rashid that he would kill him if he did not give Smith the key. Smith took $350 from the register and $25 from his wallet. Fortunately, before he could escape, the police arrived and apprehended Smith.
Smith complains that while instructing the jury as to Smith's charge of attempted second-degree murder, the trial judge stated only that "an attempted killing that is excusable or was committed by the use of justifiable deadly force is lawful." The trial judge did not instruct the jury as to the definitions of justifiable and excusable homicide. It appears from the record that defense counsel agreed that an instruction on manslaughter would be omitted but there was no agreement that the definitions of justifiable and excusable homicide would not be read. While Smith did not object to the instruction at the trial level, he argues on appeal that failure to state the complete instruction is fundamental error and the conviction must be reversed. It appears clear that he is correct.
In all murder and manslaughter cases, the jury must be instructed as to the definitions of justifiable and excusable homicide. See Hall v. State, 677 So.2d 1353 (Fla. 5th DCA 1996),
review granted, 687 So.2d 1303 (Fla.1997); Thurston v. State, 762 So.2d 558 (Fla. 4th DCA 2000). Failure to give the justifiable and excusable homicide instruction is fundamental error, see Van Loan v. State, 736 So.2d 803 (Fla. 2d DCA 1999), even if the defendant did not request the instruction because the jury must be fully instructed as to what constitutes lawful versus unlawful acts. A defendant's request that the court forego instructing the jury as to the lesser included offenses cannot be construed as a specific waiver of the justifiable and excusable homicide instruction. See Hall, 677 So.2d 1353.
The state urges that the failure to give the full instruction is harmless error because the excusable and justifiable homicide instruction is inconsistent with the defense presented, which was that he was not the perpetrator. However, case law does not allow for this exception. In Lucas v. State, 630 So.2d 597 (Fla. 1st DCA 1993), the defendant was charged with attempted second-degree murder, armed robbery, kidnaping and sexual battery. His sole defense was that, although the crimes had occurred, he was not the perpetrator. The defense requested an instruction on attempted manslaughter as a category one lesser included offense of attempted second-degree murder, but the trial court failed to refer to justifiable or excusable homicide. The defendant was convicted of attempted second-degree murder. The district court held that the failure to explain justifiable and excusable homicide as part of the attempted manslaughter instruction was fundamental error. The conviction was reversed and the question certified. The Supreme Court approved the decision holding that "the failure to give a complete initial instruction on manslaughter constitutes fundamental...
To continue reading
Request your trial
-
Mohammed v. State
...State , 828 So. 2d 460, 462 (Fla. 5th DCA 2002) ; Richardson v. State , 818 So. 2d 679, 680 (Fla. 3d DCA 2002) ; Smith v. State , 773 So. 2d 1278, 1279–80 (Fla. 5th DCA 2000) ; Thurston v. State , 762 So. 2d 558, 559 (Fla. 4th DCA 2000) ; Van Loan v. State , 736 So. 2d 803, 804 (Fla. 2d DCA......
-
Pena v. State, 2D01-1066.
...See, e.g., Rojas v. State, 552 So.2d 914 (Fla.1989); Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999); Smith v. State, 773 So.2d 1278, 1279 (Fla. 5th DCA 2000). The offense described in section 782.04(1)(a)(3), however, is an unusual form of felony murder. The defendant does not nee......
-
JERMe. YOUNG v. State Of Fla.
...supra). In Williams v. State, 804 So. 2d 572, 573 (Fla. 5th DCA 2002), the Fifth District came to a similar conclusion, citing Smith v. State, 773 So. 2d 1278 (citing Hale, supra; Philmore, supra; and McIntyre, supra) and Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000) (citing Hale, supra,......
-
Garcia v. Sec'y
...Lucas, 645 So. 2d 425, 427 (Fla. 1994) (quoting Stockton v. Florida, 544 So. 2d 1006, 1008 (Fla. 1989)); see also Smith v. Florida, 773 So. 2d 1278, 1279-80 (Fla. 5th DCA 2000) (finding that the failure to give the justifiable and excusable homicide instructions constituted fundamental erro......
-
The trial (conduct of trial, jury instructions, verdict)
...v. State, 993 So. 2d 1170 (Fla. 5th DCA 2008) receding from Blandon v. State , 657 So. 2d 1198 (Fla. 5th DCA 1995) and Smith v. State , 773 So. 2d 1278 (Fla. 5th DCA 2000) The state is not required in a burglary case to allege the specific offense defendant intended to commit in the structu......