Taylor v. State

• Decision Date: 22 December 1983
• Docket Number: No. 61143,61143
• Citation: 444 So.2d 931
• Parties: Thomas J. TAYLOR, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 931

444 So.2d 931

Thomas J. TAYLOR, Petitioner, v. STATE of Florida, Respondent.

No. 61143.

Supreme Court of Florida.

Dec. 22, 1983.

Rehearing Denied Feb. 27, 1984.

Kirk N. Kirkconnell and Warren W. Lindsey of Muller & Kirkconnell, Winter Park, for petitioner.

Jim Smith, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for respondent.

BOYD, Justice.

This case is before us to review a decision of a district court of appeal, Taylor v. State, 401 So.2d 812 (Fla. 5th DCA 1981), which passed upon a question certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Petitioner Taylor was charged by indictment with two counts of first-degree murder and by information with one count of attempted first-degree murder. The indictment charged petitioner with murdering Teddy Pawalta and John Walwyn on the 27th day of October, 1979. The information charged him with attempting to murder Harry Clayton on the same day but left out the year. In both cases petitioner filed a motion for statement of particulars, requesting the exact date, time and place of the alleged crimes. Petitioner also moved to dismiss the information for failure to allege essential and ultimate facts, namely the year the attempted murder was to have taken place. Upon petitioner's motion both cases were consolidated for trial. The court then granted the motion for statement of particulars with respect to each count of the indictment and information, but later denied the motion to dismiss the information. In its statement of particulars, the state narrowed the time of death as occurring between 12:01 a.m., October 24 and 12:01 a.m., October 28.

After the jury was sworn, petitioner again moved to dismiss the information for failure to allege as definitely as possible the time of the offense. The state responded that since petitioner had not been prejudiced, the court had the discretion to allow the state to amend the information. The court found petitioner had not been prejudiced and therefore denied his motion to dismiss and granted the state's motion to amend the information.

At the trial, evidence was produced showing that petitioner had shot the three victims with a shotgun at around 11:30 p.m. on October 27, 1979. However, there was no evidence as to when Pawalta and Walwyn had actually died. The only relevant evidence was the medical examiner's testimony that the two men were dead when he performed the autopsies at 9:30 a.m., October 28, the morning after the shooting. After the state rested, petitioner moved to dismiss the indictment for failure of any proof that the murder had been committed within the time given in the bill of particulars or on the date listed in the indictment. Petitioner also renewed his motion to dismiss the information for lack of a specific date. The state responded by requesting leave to amend the bill of particulars by extending the time ten hours to include the time the autopsies were performed. Finding that petitioner had not been prejudiced in the preparation of his defense, the court granted the state's motion to amend the bill of particulars.

At the charge conference, the court asked the attorneys if there was a crime of attempted manslaughter. Petitioner's attorney averred that there was. So, without any objection, the court instructed the jury on attempted manslaughter as a lesser included offense of attempted first-degree murder.

The jury found petitioner guilty of attempted manslaughter of Clayton. It also found him guilty of second-degree murder of Walwyn and manslaughter of Pawalta. The judge sentenced petitioner to two consecutive three-year terms with twenty years probation for the crimes of manslaughter and second-degree murder and a concurrent five-year term for attempted manslaughter.

Petitioner appealed to the District Court of Appeal, Fifth District, arguing that the state should not have been allowed to amend the information or the bill of particulars and that there was no such crime as attempted manslaughter. The district court affirmed the judgments and certified the following question as one of great public importance:

IS THERE A CRIME OF ATTEMPTED MANSLAUGHTER UNDER THE STATUTES OF THE STATE OF FLORIDA?

401 So.2d 816. Our answer is a qualified yes.

As he did before the district court, petitioner argues that the crime of attempted manslaughter is a logical impossibility. He asserts that a person cannot form an intent to commit an act by culpable negligence. The district court found a certain appeal to petitioner's argument, but concluded, as did the Fifth Circuit Court of Appeals in Charlton v. Wainwright, 588 F.2d 162 (5th Cir.1979), that the Florida Supreme Court has long recognized the crime of assault with intent to commit manslaughter. The district court reasoned that if there can be a crime of assault with intent to commit manslaughter, then there can be an attempt, which requires the formation of an intent, to commit manslaughter. The district court concluded that "precedent, if not logic, requires that we hold that there is a crime of attempted manslaughter in Florida." 401 So.2d at 816.

The district court failed to perceive the erroneous assumption in appellant's argument that manslaughter is necessarily an involuntary act. This has never been the case in Florida. The crime of assault with intent to commit manslaughter was premised upon the fact that in Florida the crime of manslaughter includes certain types of intentional killings. The first case to hold there was such a crime as an assault with intent to commit manslaughter was Williams v. State, 41 Fla. 295, 26 So. 184 (1899), wherein the defendant was charged with assault with intent to murder, but was convicted of assault with intent to commit manslaughter. He appealed on the basis that such a crime was unknown to the law. This Court disagreed, stating:

[T]here is nothing in the definition of manslaughter to exclude from its provisions all intentional homicides, or to include within the definition of murder all intentional killings, unless the intention is so deliberate as to amount to a premeditated design. The ordinary case of a sudden combat where the passions are aroused by sufficient provocation will furnish a pertinent illustration. Here there may be an intent to take life accompanied by an assault with a deadly weapon to carry out that intent. If the intent does not rise to the degree of a premeditated design, the killing will not be murder, but manslaughter. If the act does not result in death, why will not the party be guilty of an assault with intent to commit a felony, to wit: manslaughter? We think he will be....

41 Fla. at 299-300, 26 So. at 186 (emphasis in original). ¹ The Court made it clear, however, that for a conviction of assault with intent to commit manslaughter to be valid, there must be proof that the defendant did intend to kill.

But upon indictments for assault with intent to commit any of the grades or degrees of unlawful homicide, it will not be sufficient to show that the killing, had it occurred, would have been unlawful and a felony, but it must be found that the accused committed the assault with intent to take life, for although an unintentional or involuntary killing may in some cases be unlawful and a felony, no man can intentionally do an unintentional act; and without the intent the assault can not be punished under this statute even though the killing, had it been committed, would have amounted to a felony.

41 Fla. at 298, 26 So. at 185.

Thus this Court recognized the distinction found in common law between voluntary and involuntary manslaughter. The crime of assault with intent to commit manslaughter was found to exist only in those cases where, if death had resulted, the manslaughter would have been voluntary and not involuntary. ² By the same reasoning, it is not a logical impossibility for the crime of attempted manslaughter to exist in situations where, if death had resulted, the defendant could have been found guilty of voluntary manslaughter. Accord Anthony v. State, 409 N.E.2d 632 (Ind.1980); Commonwealth v. Hebert, 373 Mass. 535, 368 N.E.2d 1204 (1977); People v. Genes, 58 Mich.App. 108, 227 N.W.2d 241 (1975); State v. Norman, 580 P.2d 237 (Utah 1978); see also People ex rel. Bassin v. Isreal, 31 Ill.App.3d 744, 335 N.E.2d 53 (1975); State v. Carson, 292 Or. 451, 640 P.2d 586 (1982). But see People v. Weeks, 86 Ill.App.2d 480, 230 N.E.2d 12 (1967); State v. Carter, 44 Wis.2d 151, 170 N.W.2d...