CLAUDETTE ROBERTSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Claudette Robertson was convicted of second-degree murder with a firearm and sentenced to seventeen years imprisonment. The Fourth District Court of Appeal reversed and remanded for a new trial because the trial court failed to instruct the jury on second-degree murder without the firearm enhancement and failed to include that option on the verdict form.
The trial court committed reversible error by failing to instruct the jury on second-degree murder without the firearm enhancement under section 775.087(1) and by failing to include that conviction option on the verdict form. The defendant was entitled to have the jury consider this intermediate step-down conviction.
[1] A defendant charged with second-degree murder with a firearm is entitled to have the jury instructed on second-degree murder without the firearm enhancement as a lesser-i…
[2] A jury verdict form must include an option for the jury to convict of a lesser offense that is not enhanced by the use of a firearm, even if the charged offense includes…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“appellant was entitled to have that considered”
Establishes that the defendant had a right to have the jury consider the option of convicting on second-degree murder without the firearm enhancement
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Join FLexlaw to unlock all legal intelligenceRobertson was involved in a struggle with the victim, and a gun in her possession discharged and killed the victim. She was charged with second-degree…
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DOWNEY, Judge.
This is a timely appeal from a judgment of conviction and a sentence of seventeen years’ imprisonment, with a three-year mandatory minimum, for the offense of second-degree murder with a firearm.
Appellant, Claudette Robertson, was charged with second-degree murder with a firearm. At trial, there was testimony that she was involved in a struggle with the victim, and a gun that was in her possession discharged and killed the victim.
Appellant contends that she requested the court to instruct the jury on the offense of second degree murder without a firearm as a lesser-included offense of that which was charged. That request was denied and the court instructed the jury on second-degree murder (with no mention of the use of a firearm), and what the trial court denominated the lesser-included offenses of second-degree murder under the facts of the case: 1) attempted murder in the second degree, 2) manslaughter, 3) aggravated battery, 4) aggravated assault, and 5) bat tery. No instruction was given regarding the aggravation of a felony pursuant to Standard Jury Instruction 3.05(a), Aggravation of a Felony By Carrying a Firearm.
The verdict form presented to the jury gave them seven options:
A. The Defendant is guilty of Murder in the Second Degree, with a firearm, as charged in the Information.
B. The Defendant is guilty of Attempted Murder in the Second Degree, with a firearm, a lesser included offense.
C. The Defendant is guilty of Manslaughter with a firearm, a lesser included offense.
D. The Defendant is guilty of Aggravated Battery with a firearm, a lesser included offense.
E. The Defendant is guilty of Aggravated Assault with a firearm, a lesser included offense.
F. The Defendant is guilty of Battery, a lesser included offense.
G. The Defendant is not guilty.
However, nowhere on the verdict form was a provision made for the jury to find appellant guilty of second-degree murder without the enhancement provided in section 775.087(1), Florida Statutes (1987). Such a verdict would be a step down from second degree murder with a firearm and appellant was entitled to have that considered.
In Smiddy v. State, 468 So. 2d 466 (Fla. 4th DCA 1985), this court held it to be reversible error for the trial court to fail to instruct the jury on manslaughter and excusable homicide where appellant was convicted of manslaughter with a firearm. Furthermore, the trial court was found to be in error in failing to give Standard Jury Instruction (Criminal) 3.05(a), Aggravation of a Felony by Carrying a Firearm.
The instructions and jury verdict form are lacking in the instant case in several respects. The court never instructed the jury on the crime charged, i.e., second-degree murder with a firearm, although it did instruct on second-degree murder. The most grievous oversight, however, was the omission from the jury verdict form of the option to convict of second-degree murder without the enhancement provided for in section 775.087(1).
Therefore, as in Smiddy, we reverse the conviction and sentence and remand for a new trial.
GLICKSTEIN and DELL, JJ., concur.
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Cited By
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Bethea v. State, 767 So. 2d 630 (Fla. 5th DCA 2000)…ate, 608 So. 2d 559 (Fla. 2d DCA 1992)(holding that trial court committed per se reversible error when it omitted a necessarily lesser included offense from the verdict form, precluding the jury from exercising its pardon power); Robertson v. State, 532 So. 2d 90, 91 (Fla. 4th DCA 1988)(grievous oversight to omit from jury verdict form option of lesser included offense). This oversight prejudiced Bethea. The jury found Bethea guilty of a lesser included offense on the other charge and there exists the reaso…
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Wilson v. State, 566 So. 2d 36 (Fla. 4th DCA 1990)…, and in the absence of any objection by the state to the instructions agreed to by the court, it is clear that the omission was an oversight. A verdict that is not in conformance with the jury instructions is clearly defective. Robertson v. State, 532 So. 2d 90 (Fla. 4th DCA 1988); Moore v. State, 496 So. 2d 255 (Fla. 5th DCA 1986). Therefore, the judgment and sentence as to count I of information number 88-5940 is reversed with instructions to either afford the defendant a new trial or, with the concurre…
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Authorities Cited
- Millard H. Smiddy v. State, 468 So. 2d 466 (Fla. 4th DCA 1985)