Opinion
No. 89-2542.
January 22, 1992.
Appeal from the Circuit Court, Broward County, Mel Grossman, J.
Kayo E. Morgan, Fort Lauderdale, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellee.
During a second degree murder trial, the defendant offered up some evidence of justifiable and excusable homicide and a "long-form" jury instruction was given thereon. After retiring, the jury returned for further instruction and this time was only read the "short-form" version over defendant's objection and request for repeat of the "long-form." We reverse.
In Reed v. State, 531 So.2d 358 (Fla. 5th DCA 1988), the Fifth District held that when a jury asks for re-instruction, such should be as complete as was the original. We think the Fifth District was correct in view of the extensive discourse on this subject in State v. Smith, 573 So.2d 306 (Fla. 1990). In Smith, our supreme court noted that "failure to give the long-form instruction when it was not requested did not constitute fundamental error." Id. at 310. It logically follows that failure to give the long-form where it is requested is error, especially when a proper objection is lodged.
We find no other error on appeal.
REVERSED AND REMANDED FOR A NEW TRIAL.
DELL and POLEN, JJ., concur.