SHELDRICK LEE MCNEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Sheldrick Lee McNeal appeals his conviction for second-degree murder after a jury trial. The trial court gave an incomplete instruction to the jury on excusable homicide by omitting paragraphs one and three as set forth in Standard Jury Instructions — Criminal Cases No. 92-1, 603 So. 2d 1175, 1176-78 (Fla.1992). See also Standard Jury Instructions in Criminal Cases (91-1), 639 So. 2d 602 (Fla.1994). Although defense counsel repeatedly expressed satisfaction with the proposed instruction that was given by the court, failure to give the correct instruction is fundamental error. Rojas v. State, 552 So. 2d 914 (Fla.1989); Stallings v. State, 634 So. 2d 784 (Fla. 5th DCA 1994); Blandon v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995).
We vacate the judgment and remand for a new trial.
JUDGMENT VACATED; REMANDED.
PETERSON, C.J., and GRIFFIN and THOMPSON, JJ., concur.
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Mohammed v. State, 309 So. 3d 269 (Fla. 5th DCA 2020)…ady-outdated, automaticreversal rule. Specifically, Knight instructs that an error in a lesser-included offense 2 See Hall v. State, 677 So. 2d 1353, 1354 (Fla. 5th DCA 1996); Ortiz v. State, 682 So. 2d 217, 218 (Fla. 5th DCA 1996); McNeal v. State, 662 So. 2d 373, 373–74 (Fla. 5th DCA 1995); Beckham v. State, 884 So. 2d 973, 973–74 (Fla. 1st DCA 2004); Fletcher v. State, 828 So. 2d 460, 462 (Fla. 5th DCA 2002); Richardson v. State, 818 So. 2d 679, 680 (Fla. 3d DCA 2002); Smith v. State, 773 So. 2d 1278, 1279…
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Mitchell v. State, 704 So. 2d 1155 (Fla. 4th DCA 1998)…failed to instruct the jury on the essential and material element of notice on the charge of driving while license suspended (DWLS) under section 322.34, Florida Statutes (1995). See Chicone v. State, 684 So. 2d 736, 745 (Fla.1996); McNeal v. State, 662 So. 2d 373, 374 (Fla. 5th DCA 1995), rev. denied, 670 So. 2d 940 (Fla.1996). We are unpersuaded that notice is not an essential element of DWLS where the suspension was imposed under section 322.2615, Florida Statutes (1995) (providing for license suspension b…
Authorities Cited
- STANDARD JURY INSTRUCTIONS-CRIMINAL CASES NO. 92-1, 603 So. 2d 1175 (Fla. 1992)
- Rojas v. State, 552 So. 2d 914 (Fla. 1989)
- Blandon v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995)
- STANDARD JURY INSTRUCTIONS IN CRIM. CASES (94-1), 639 So. 2d 602 (Fla. 1994)
- Stallings v. State, 634 So. 2d 784 (Fla. 5th DCA 1994)