MILLARD H. SMIDDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in failing to instruct the jury on excusable homicide and manslaughter when instructing on manslaughter with a firearm. The court also erred in failing to give an instruction on aggravation of a felony by carrying a firearm.
Appellant was convicted of manslaughter with a firearm. The trial court gave an instruction on manslaughter with a firearm but failed to instruct on e…
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[*467] DELL, Judge.
Appellant challenges his conviction and sentence of manslaughter with a firearm. Appellant contends that the trial court erred in failing to give an instruction on excusable homicide when it gave an instruction on manslaughter with a firearm, and in failing to instruct the jury on manslaughter. We agree.
This court held in Brown v. State, 467 So. 2d 323 (Fla. 4th DCA 1985):
When the court gives an instruction on manslaughter, it must also give an instruction on justifiable and excusable homicide. See Hedges v. State, 172 So. 2d 824 (Fla.1965); Pouk v. State, 359 So. 2d 929 (Fla. 2d DCA 1978); Delaford v. State, 449 So. 2d 983 (Fla. 2d DCA 1984).
Additionally, we hold that under the facts of this case the trial court erred when it failed to give Standard Jury Instruction (Criminal) 3.05(a), Aggravation of a Felony by Carrying a Firearm.
We find no merit in the other points raised by appellant. Accordingly, this case is reversed and remanded for a new trial.
REVERSED and REMANDED.
HERSEY and GLICKSTEIN, JJ„ concur.
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Citator
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Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987)…a.1965), that when a trial court gives an instruction on manslaughter it is reversible error for the court to fail to give an instruction on justifiable and excusable homicide. See, Alejo v. State, 483 So. 2d 117 (Fla. 2d DCA 1986); Smiddy v. State, 468 So. 2d 466 (Fla. 4th DCA 1985); Brown v. State, 467 So. 2d 323 (Fla. 4th DCA 1985); Delaford v. State, 449 So. 2d 983 (Fla. 2d DCA 1984); Pridgeon v. State, 425 So. 2d 8 (Fla. 1st DCA 1982); Kelsey v. State, 410 So. 2d 988 (Fla. 1st DCA 1982); Gross v. State,…
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Stockton v. State, 544 So. 2d 1006 (Fla. 1989)…ons of justifiable and excusable homicide is, therefore, incomplete. Hedges v. State, 172 So. 2d 824, 826 (Fla.1965). See also Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987); Alejo v. State, 483 So. 2d 117 (Fla. 2d DCA 1986); Smiddy v. State, 468 So. 2d 466 (Fla. 4th DCA 1985); Brown v. State, 467 So. 2d 323 (Fla. 4th DCA), review denied, 467 So. 2d 1000 (Fla.1985); Delaford v. State, 449 So. 2d 983 (Fla. 2d DCA 1984); Kelsey v. State, 410 So. 2d 988 (Fla. 1st DCA 1982); Lawson v. State, 383 So. 2d 111…
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Sammie Lee Harris v. State, 580 So. 2d 243 (Fla. 1st DCA 1991)…n) in which there was an erroneous or omitted instruction despite objection or request by counsel: Hedges v. State, supra (failure to give on reinstruction, over objection); Alejo v. State, supra (failure to give, and no objection); Smiddy v. State, 468 So. 2d 466 (Fla. 4th DCA 1985) (failure to give instruction; whether objection or request made not stated); Brown v. State, supra (court refused instruction); Delaford v. State, supra (failure to instruct after request); Pridgeon v. State, 425 So. 2d 8 (Fla. 1…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Pouk v. State, 359 So. 2d 929 (Fla. 2d DCA 1978)
- Delaford v. State, 449 So. 2d 983 (Fla. 2d DCA 1984)
- Lucretia Brown v. State, 467 So. 2d 323 (Fla. 4th DCA 1985)