Wilcoxson v. State, 88-1165

Decision Date22 April 1991
Docket NumberNo. 88-1165,88-1165
Citation16 Fla. L. Weekly 289,577 So.2d 1388
Parties16 Fla. L. Weekly 289 Larry WILCOXSON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals
OPINION ON REHEARING

SMITH, Judge.

The appellant's motion for rehearing is granted, and the following opinion is substituted for the opinion originally released. 1

Appellant raises several issues in this appeal from a judgment of conviction and sentence for manslaughter with a firearm. We affirm the conviction but remand for resentencing under a corrected scoresheet.

Appellant and several companions were mingling in the parking lot of the Busy Bee Tavern in Havana when Robert Browning, the victim, approached one of the gentlemen and demanded money. Browning had a sharpened piece of copper wire in his hand, the length and diameter of which was disputed at trial. Browning poked the gentleman stating that if he wasn't given money, Browning would kill the man. Several witnesses testified that Browning appeared to be intoxicated and was quite profane. Browning then told appellant that if anybody crossed him, he wouldn't mind killing that person. At this point, appellant and a companion decided to enter the tavern, but first the appellant wanted to lock the doors of his vehicle. As he was exiting the rear of his van, appellant caught sight of Browning approaching with the sharpened wire. According to the appellant, when he reached inside his van for something with which to hit Browning, his hand came up with his .44 caliber single-action revolver from a holster inside an ice cooler. Appellant testified that he only wanted to hit Browning with the gun, but the gun discharged, fatally wounding Browning. Appellant was apprehended and charged with manslaughter with use of a firearm, and was convicted as charged.

We find no merit in appellant's first two points on appeal. Appellant first contends that the evidence was insufficient to support the verdict. Our review of the record convinces us otherwise. Appellant next complains of error in the trial court's instructions, and in the verdict forms submitted to the jury, concerning the firearm element of the offense. This argument ignores the facts disclosed by the record. At trial, appellant's counsel specifically requested that the verdict form contain only one charge: manslaughter with a firearm. Appellant specifically waived all category two lesser included offenses. The jury was instructed without objection, and returned a verdict of guilty of manslaughter with a firearm. No reversible error has been shown under these facts.

Appellant next contends that the instruction given by the trial court concerning justifiable and excusable homicide was insufficient. The trial court instructed the jury using the "short form" justifiable and excusable homicide instructions contained in the introductory instructions for all homicide cases, Florida Standard Jury Instructions in Criminal Cases. The court also, in conjunction with the instruction on manslaughter, gave the following from the standard instructions:

However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.

Following this instruction the court fully instructed the jury on justifiable homicide, including every aspect of the defense of self-defense.

Appellant argues that the instruction which should have been given in his case is the three-part standard jury instruction on excusable homicide used in DUI manslaughter cases. Appellant cites to this court's holding in Ortagus v. State, 500 So.2d 1367 (Fla. 1st DCA 1987), approved in Rojas v. State, 552 So.2d 914 (Fla.1989), that summary definitions on excusable and justifiable homicide given at the beginning of the jury's instructions, and not in connection with the instruction on manslaughter, do not satisfy a trial court's fundamental obligation to instruct on the applicable law. Appellant maintains that failure to give a complete and accurate instruction is fundamental error, reviewable regardless of a defendant's failure to object. We find, contrary to appellant's contentions, that the Florida Supreme Court has settled the issue adversely to the position urged by appellant here, in State v. Smith, 573 So.2d 306 (Fla.1990).

It is correct, as appellant argues, that this court found fundamental error in Ortagus. However, the fundamental error in that case was in the trial court's failure to include, in connection with the instruction on the elements of manslaughter, any definitions or reference to the defenses of justifiable or excusable homicide. In Ortagus, unlike the present case, the trial court failed to give the added language quoted above in connection with the manslaughter instruction, in which the court specifically referred to its prior instructions on justifiable and excusable homicide. This court correctly found that fundamental error occurred in Ortagus. See Rojas v. State, 552 So.2d at 916. There was no fundamental error in the case before us.

If any doubt remained after Rojas concerning the sufficiency, absent objection, of the short-form instructions on justifiable and excusable homicide, followed by the reference to those instructions in conjunction with the manslaughter instruction, such doubt was laid to rest by the court's opinion in State v. Smith, supra. There, as here, the trial court gave the short-form instructions on justifiable and excusable homicide, followed by reference to these definitions in connection with the instruction on manslaughter. The court in State v. Smith held that no fundamental...

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4 cases
  • Harris v. State
    • United States
    • Florida District Court of Appeals
    • May 9, 1991
    ...by reference to these definitions in connection with instruction on manslaughter, not fundamental error); and Wilcoxson v. State, 577 So.2d 1388 (Fla. 1st DCA 1991) However, since petitioner's conviction of second-degree murder was affirmed on appeal in late 1982 (November 4, 1982, 422 So.2......
  • Cave v. State
    • United States
    • Florida District Court of Appeals
    • July 25, 1994
    ...stated reason. In the second place, for us to accept the state's argument would conflict with our decision in Wilcoxson v. State, 577 So.2d 1388 (Fla. 1st DCA 1991). In that case, we disapproved a departure sentence based on a pattern of escalating criminal conduct because the trial court f......
  • Obojes v. State
    • United States
    • Florida District Court of Appeals
    • November 20, 1991
    ...simply descriptive of the scenario. See Lerma v. State, 497 So.2d 736 (Fla.1986). Id. at n. 1. Appellant also cites Wilcoxson v. State, 577 So.2d 1388 (Fla. 1st DCA 1991) (on rehearing), in which the trial court imposed a departure sentence on a conviction for manslaughter with a firearm ba......
  • McIntosh v. State, 94-2483
    • United States
    • Florida District Court of Appeals
    • November 15, 1995
    ...502 U.S. 1065 (1992); Delvalle v. State, 653 So.2d 1078 (Fla. 5th DCA 1995), review denied, 662 So.2d 931 (Fla.1995); Wilcoxson v. State, 577 So.2d 1388 (Fla. 1st DCA 1991). ...

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