Tobey v. State
| Decision Date | 18 November 1988 |
| Docket Number | No. 88-1594,88-1594 |
| Citation | 13 Fla. L. Weekly 2541,533 So.2d 1198 |
| Parties | 13 Fla. L. Weekly 2541 Daniel Maxwell TOBEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Daniel Maxwell Tobey appeals from the trial court's order summarily denying his motion for relief from his convictions and sentences for first degree and attempted first degree murder. None of the several claims Tobey raises in his motion has merit. Three grounds, however, require discussion. Tobey contends that the trial court committed fundamental error in giving an abbreviated jury instruction on excusable and justifiable homicide and in failing to give an instruction on excusable and justifiable homicide in conjunction with the manslaughter instruction. Tobey further asserts that his trial and appellate counsel were ineffective for failing to object to and appeal, respectively, this claimed fundamental error. Although we find no merit in these contentions, as is demonstrated below, we determined to treat this matter en banc to correct that aspect of Spaziano v. State, 522 So.2d 525 (Fla. 2d DCA 1988), which is in conflict with Banda v. State, No. 69,102 (Fla. July 19, 1988) [13 F.L.W 451], and Squires v. State, 450 So.2d 208 (Fla.1984).
Our corrective action highlights the distinction between the fundamental error of failing to instruct the jury on defenses for which evidence is offered during the trial, Carter v. State, 469 So.2d 194 (Fla. 2d DCA 1985), and the nonfundamental error in failing to give jury instructions on an offense which is two steps removed from the offense resulting in conviction. State v. Abreau, 363 So.2d 1063 (Fla.1978).
In Spaziano, the defendant was found guilty of first degree murder. At trial, Spaziano's defense was that the killing was an accident. In his motion for postconviction relief, he alleged that trial and appellate counsel were ineffective for failing to object to and appeal the trial court's incomplete and misleading jury instructions on excusable homicide and manslaughter. Relying on our prior decisions in Alejo v. State, 483 So.2d 117 (Fla. 2d DCA 1986); Carter v. State, 469 So.2d 194 (Fla. 2d DCA 1985); and Blitch v. State, 427 So.2d 785 (Fla. 2d DCA 1983), we found that Spaziano's trial counsel's failure to object to the incomplete jury instruction on manslaughter and inaccurate instruction on justifiable homicide prejudiced his case because the omission excluded the only defense for which evidence was offered. Accordingly, we reversed and remanded with directions to grant Spaziano's motion for a new trial.
The supreme court in Squires made plain that when a "defendant is convicted of first degree murder an error or omission in an instruction on the lesser included offense of manslaughter is not fundamental error." Id. at 211. More recently in Banda, the supreme court applied the foregoing principle noting, Slip op. at 3 [13 F.L.W. at 451]. Thus, we recede from the portion of Spaziano that can be read to mean that it is fundamental error to give an incomplete instruction on manslaughter by failing jointly to give an accurate instruction on justifiable and excusable homicide where the defendant is convicted of first degree murder. Spaziano was convicted of first degree murder; therefore, the failure to give a complete instruction on manslaughter was not fundamental error. Banda; Squires' Abreau. Further, under Banda, counsel's failure to object to the erroneous instruction on manslaughter could not have been prejudicial to Spaziano's case since the jury returned a verdict of guilty on the first degree murder charge.
We adhere to that part of Spaziano, however, which holds that Spaziano's trial counsel was ineffective for failing to object to an erroneous instruction on the defense of justifiable and excusable homicide where evidence was presented to support that defense.
In Banda, Squires, and Abreau, the court concluded that it was not fundamental error in failing to give an accurate instruction on a lesser included offense where the defendant was convicted of an offense two steps greater than the offense on which the jury either was not or was erroneously instructed. The foregoing decisions are confined to lesser included instructions and do not touch upon the failure to instruct on the defense of excusable and justifiable homicide. In Abreau the supreme court graphically illustrated its...
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