Summary
holding that failure to explain justifiable and excusable homicide as part of the lesser-included offense of attempted manslaughter when defendant was charged with attempted second-degree murder was "fundamental" error which could be raised for the first time on appeal, relying upon Rojas and Miller
Summary of this case from Lucas v. StateOpinion
No. 92-233.
December 15, 1992.
Appeal from the Circuit Court, Monroe County, Richard G. Payne, J.
Bennett H. Brummer, Public Defender and Marti Rothenberg, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Joan L. Greenberg, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and BARKDULL and LEVY, JJ.
At the retrial required by our reversal of his previous conviction in Perez v. State, 578 So.2d 510 (Fla. 3d DCA 1991), the defendant was again found guilty of attempted second degree murder with a firearm. Unfortunately, we are again compelled to reverse because, although the jury charge initially defined excusable and justifiable homicide as part of the homicide instructions, it, obviously inadvertently, did not also specifically exclude justifiable and excusable homicide from the definition of the lesser included offense of manslaughter. Under Miller v. State, 573 So.2d 337 (Fla. 1991) and Rojas v. State, 552 So.2d 914 (Fla. 1989), the omission presents fundamental error, requiring a new trial although there was no objection below. Because the record does not sustain the state's contention that the omission was affirmatively agreed to or invited by defense counsel, compare Armstrong v. State, 579 So.2d 734 (Fla. 1991), the judgment is therefore reversed for a new trial.
Reversed and remanded.