EMMANUEL DUMAY
v.
STATE OF FLORIDA
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A trial court's failure to instruct the jury on justifiable and excusable attempted homicide does not constitute fundamental error when the defendant raises no such defense and the trial evidence does not support it.
[1] A failure to instruct the jury on an affirmative defense that was neither raised by the defendant nor supported by the trial evidence does not constitute fundamental erro…
Previewing 1 of 1 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“a failure to issue an unrequested defense instruction is not fundamental error”
The court cited Sochor v. State and Mohammed v. State in concluding that unrequested defense instructions need not be given to avoid fundamental error.
Emmanuel Dumay was convicted of two counts of attempted second-degree murder for shooting a firearm toward victims. He appealed, claiming the trial co…
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Third District Court of Appeal State of Florida
Opinion filed October 8, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-1819 Lower Tribunal No. F21-7161 ________________
Emmanuel Dumay, Appellant,
vs.
State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Teresa Mary Pooler, Judge.
Carlos J. Martinez, Public Defender, and Nicholas A. Lynch, Assistant Public Defender, for appellant.
James Uthmeier, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
Before SCALES, C.J., and LINDSEY and MILLER, JJ.
PER CURIAM.
2
Emmanuel Dumay appeals his convictions and sentences for two counts of attempted second-degree murder. Dumay claims that the trial court committed fundamental error by failing to instruct the jury on justifiable and excusable attempted homicide. See Fla. Std. Jury Instr. (Crim.) 6.1 (setting forth the Introduction to Attempted Homicide instruction). Dumay, though, raised no defense below that his shooting of a firearm toward the victims was either justified or excused – indeed, the trial evidence did not support either defense. As our sister court has explained, the Introduction to Attempted Homicide instruction relates to a defense against the charge of attempted second-degree murder, not to an element of the crime. See Mohammed v. State, 309 So. 3d 269, 274 (Fla. 5th DCA 2020). On this record, where (i) there was no error in the jury instruction for the offenses of conviction (two counts of attempted second-degree murder), and (ii) Dumay makes no claim that the trial evidence was insufficient to support those convictions,1 we conclude that the trial court’s failure to give the Introduction to Attempted Homicide instruction as to defenses neither raised at trial nor supported by the trial evidence did not constitute fundamental error. See e.g. id. at 275
3 (citing Sochor v. State, 629 So. 2d 295 (Fla. 1993), and concluding that “we are bound by Sochor’s holding that a failure to issue an unrequested defense instruction is not fundamental error”) (footnote omitted).2 Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- Knight v. State, 286 So. 3d 147 (Fla. 2019)
- State v. Damani Spencer, 216 So. 3d 481 (Fla. 2017)
- Chi Luu Linville v. Home Sav. OF Am., FSB, 629 So. 2d 295 (Fla. 4th DCA 1993)
- Mohammed v. State, 309 So. 3d 269 (Fla. 5th DCA 2020)