Summary
recognizing error in failure to instruct on the underlying crime of robbery in connection with the offense of felony murder
Summary of this case from Larry v. StateOpinion
No. 93-590.
February 23, 1994.
Appeal from the Circuit Court, Duval County, R. Hudson Olliff, J.
Nancy A. Daniels, Public Defender, David P. Gauldin, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Sonya Roebuck Horbelt, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, Preston Lamar Tubman, challenges his conviction for first-degree murder, contending that the trial court erred by failing to instruct the jury on the underlying crime of robbery in connection with the felony-murder charge. The state concedes the error, but argues it was harmless under the circumstances. We cannot agree. Although the state charged Tubman only with premeditated first-degree murder, the primary thrust of the state's case was felony murder. This offense was the dominant theory advanced during the state's closing argument, and the facts of the case support felony-murder rather than premeditated murder. Moreover, it is impossible to tell from the verdict form, which only listed first-degree murder, whether the jury based its verdict of guilt on either premeditated or felony murder. Under the circumstances, we cannot conclude that the failure to instruct on the underlying robbery felony was harmless error. See, e.g., Franklin v. State, 403 So.2d 975 (Fla. 1981); State v. Jones, 377 So.2d 1163 (Fla. 1979).
See Brumbley v. State, 453 So.2d 381 (Fla. 1984); Robles v. State, 188 So.2d 789 (Fla. 1966).
REVERSED and REMANDED for new trial.
BARFIELD and BENTON, JJ., concur.