GEORGE R. MILLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
George Miller appeals his conviction for manslaughter. We reverse.
In giving the standard jury instruction on manslaughter the trial judge omitted the final sentence which states, “However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.” Based on the controlling and indistinguishable authority of Rojas v. State, 552 So. 2d 914 (Fla.1989), we reverse and remand for a new trial.
The State concedes that Rojas is applicable but contends that footnote 3 dictates that the rule is otherwise when, as was true here, there is a full instruction on justifiable and excusable homicide. We disagree. The logic of Rojas dictates that the omitted sentence must be given regardless of the version of the instruction on justifiable and excusable homicide. Footnote 3 refers only to the sufficiency of the justifiable and excusable homicide instructions given in Rojas and does not address the issue presently before us.
Reversed and remanded for new trial.
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Herrard Phillippe Andre v. State, 566 So. 2d 527 (Fla. 3d DCA 1990)…PER CURIAM. For the reasons and authority articulated in Rojas v. State, 552 So. 2d 914 (Fla.1989) and Miller v. State, 561 So. 2d 596 (Fla. 3d DCA 1990), the defendant’s conviction for attempted manslaughter is reversed and remanded with directions to afford him a new trial.…
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Kinnamon v. State, 593 So. 2d 334 (Fla. 3d DCA 1992)…oper confession that the trial court committed fundamental error by failing to instruct the jury correctly on the crime of attempted manslaughter, we reverse and remand for a new trial. See Rojas v. State, 552 So. 2d 914 (Fla.1989); Miller v. State, 561 So. 2d 596 (Fla. 3d DCA), rev. denied, 574 So. 2d 143 (Fla.1990). Reversed and remanded.…
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Peters v. State, 598 So. 2d 199 (Fla. 3d DCA 1992)…g to instruct the jury that excusable and justifiable homicide are elements of manslaughter, we reverse and remand for a new trial. See Rojas v. State, 552 So. 2d 914 (Fla.1989); Kinnamon v. State, 593 So. 2d 334 (Fla. 3d DCA 1992); Miller v. State, 561 So. 2d 596 (Fla. 3d DCA), rev. denied, 574 So. 2d 143 (Fla.1990).…
Authorities Cited
- Rojas v. State, 552 So. 2d 914 (Fla. 1989)