Spaziano v. State, 86-1230
| Decision Date | 25 March 1988 |
| Docket Number | No. 86-1230,86-1230 |
| Citation | 522 So.2d 525,13 Fla. L. Weekly 790 |
| Parties | 13 Fla. L. Weekly 790 Michael A. SPAZIANO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.
The appellant, Michael Spaziano, is before this court for a second time after a jury found him guilty of first degree murder. His first appeal, raising the issues of nonexistent portions of the record precluding effective appellate representation and insufficient evidence to find premeditation, was affirmed. Spaziano v. State, 464 So.2d 564 (Fla. 2d DCA 1984). Thereafter, the appellant filed a motion seeking postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 alleging ineffectiveness of both trial and appellate counsel. 1 Specifically, Spaziano contends that his privately-retained trial counsel, Michael Sweeting, unreasonably (1) failed to object to incomplete and misleading jury instructions on excusable homicide and manslaughter; (2) failed to object to the omission of a jury instruction on justifiable homicide; (3) failed to rebut evidence of premeditation; and (4) failed to develop the defenses of excusable and justifiable homicide. An evidentiary hearing was held and the trial court denied the motion. We agree with the appellant in his first contention relating to the jury instruction. Because this is dispositive, it is unnecessary to address his remaining arguments.
While, as in most criminal cases, the evidence was conflicting, we briefly summarize the following evidence to show the context of the erroneous jury instructions. The charges against Spaziano stemmed from his shooting of the victim, Mark Cohn, which occurred after a series of physical threats and incidents of harassment directed toward Spaziano and his family by Cohn because Cohn blamed Spaziano for a rift between Cohn and Cohn's father. Cohn, who usually carried a gun either on his person or in his car, was known to have been under the influence of both mood-altering and illegal drugs on the day of the shooting. Spaziano testified that his state of mind was extremely fearful because of the recent history of threats and harassment, and especially because of the threatening behavior of Cohn towards him that day of the shooting when Cohn finally faced Spaziano on a public street. He also claimed that the shooting was accidental and unintentional; he testified that he did not know the gun was loaded and that it went off when Cohn lunged toward him as they confronted each other on the street.
Based upon the evidence at trial and the defense's theory of excusable homicide, it was incumbent upon the trial court to give a full and accurate jury instruction on excusable homicide. Blitch v. State, 427 So.2d 785 (Fla. 2d DCA 1983). Furthermore, when a manslaughter instruction is given, it is necessary that the complete definition of justifiable and excusable homicide be included as part of the manslaughter instruction. Alejo v. State, 483 So.2d 117 (Fla. 2d DCA 1986). Neither instruction was given correctly by the trial court. Instead, the court gave the following instructions to the jury:
(Excusable homicide)
The killing of a human being is excusable, and therefore lawful, when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.
....
(Manslaughter)
Before you can find the defendant guilty of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. Mark Cohn is dead.
2. The...
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Harris v. State
...of giving instructions on both justifiable and excusable homicide, even where there is no evidence The case of Spaziano v. State, 522 So.2d 525 (Fla. 2d DCA 1988), 1 also relied upon by petitioner, further illustrates the importance, in support of the court's finding of fundamental error, o......
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Campbell v. State
...his client's case’ where the error complained of ‘negated the only defense put forth by trial counsel.’ " (quoting Spaziano v. State, 522 So.2d 525, 527 (Fla. 2d DCA 1988) ) ). "[T]he failure to pursue the [available] defense constituted ineffective assistance of counsel because ‘defense co......
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Rojas v. State
...for respondent. GRIMES, Justice. We review Rojas v. State, 535 So.2d 674 (Fla. 5th DCA 1988), because of conflict with Spaziano v. State, 522 So.2d 525 (Fla. 2d DCA 1988), and Ortagus v. State, 500 So.2d 1367 (Fla. 1st DCA 1987). We have jurisdiction under article V, section 3(b)(3), of the......
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Platt v. State, 97-0074
...prejudiced his client's case" where the error complained of "negated the only defense put forth by trial counsel." Spaziano v. State, 522 So.2d 525, 527 (Fla. 2d DCA 1988), receded from on other grounds, Tobey v. State, 533 So.2d 1198 (Fla. 2d DCA 1988) (en banc), review denied, 542 So.2d 9......