Burgess v. State

District Court of Appeal of Florida

Burgess v. State

830 So. 2d 950, 2002 Fla. App. LEXIS 17172, 2002 WL 31626249

CourtDistrict Court of Appeal of Florida

DecidedNovember 22, 2002

DocketNo. 5D02-321

StatusPublished

This text of 830 So. 2d 950 (Burgess v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burgess v. State, 830 So. 2d 950, 2002 Fla. App. LEXIS 17172, 2002 WL 31626249 (Fla. Ct. App. 2002).

Pincite

Opinion

PER CURIAM.

This proceeding began as an Anders¹ appeal. Burgess’ appellate counsel appealed his conviction for attempted second degree murder with a firearm,² raising solely the point that the trial court erred in denying his motion for judgment of acquittal. Burgess filed a pro se brief in which he claimed the trial court committed fundamental error (among other things) by failing to instruct the jury on justifiable and excusable homicide. This court requested additional briefings from appellant’s counsel and the attorney general.

Upon a review of the record, both conclude that fundamental error occurred in this case. See Armstrong v. State, 579 So.2d 734 (Fla.1991); Richardson v. State, 818 So.2d 679 (Fla. 3d DCA 2002); Smith v. State, 773 So.2d 1278 (Fla. 5th DCA 2000). As the attorney general points out in the state’s brief, citing Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999), a trial court must read the definitions of excusable and justifiable homicide in all murder and manslaughter cases.

A failure to give these instructions constitutes fundamental error. By omitting the definitions, the trial court fails to advise the jury as to what constitutes lawful acts versus unlawful acts.

Van Loan, 736 So.2d at 804.

The only exception to this requirement is in a case where it can be demonstrated that defense counsel “affirmatively” waived charging the jury on justifiable and excusable homicide. But mere failure to object to the jury charge which omits those charges is not sufficient to constitute an affirmative waiver. See Fletcher v. State, 828 So.2d 460 (Fla. 5th DCA 2002).

The state concedes there is no basis in the record to find an affirmative waiver and the error is not harmless. Accordingly, we reverse and remand for a new trial. See Rojas v. State, 552 So.2d 914 (Fla.1989).

REVERSED and REMANDED.

COBB, SHARP, W., and GRIFFIN, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

This proceeding began as an Anders¹ appeal. Burgess’ appellate counsel appealed his conviction for attempted second degree murder with a firearm,² raising solely the point that the trial court erred in denying his motion for judgment of acquittal. Burgess filed a pro se brief in which he claimed the trial court committed fundamental error (among other things) by failing to instruct the jury on justifiable and excusable homicide. This court requested additional briefings from appellant’s counsel and the attorney general.

Upon a review of the record, both conclude that fundamental error occurred in this case. See Armstrong v. State, 579 So.2d 734 (Fla.1991); Richardson v. State, 818 So.2d 679 (Fla. 3d DCA 2002); Smith v. State, 773 So.2d 1278 (Fla. 5th DCA 2000). As the attorney general points out in the state’s brief, citing Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999), a trial court must read the definitions of excusable and justifiable homicide in all murder and manslaughter cases.

A failure to give these instructions constitutes fundamental error. By omitting the definitions, the trial court fails to advise the jury as to what constitutes lawful acts versus unlawful acts.

Van Loan, 736 So.2d at 804.

The only exception to this requirement is in a case where it can be demonstrated that defense counsel “affirmatively” waived charging the jury on justifiable and excusable homicide. But mere failure to object to the jury charge which omits those charges is not sufficient to constitute an affirmative waiver. See Fletcher v. State, 828 So.2d 460 (Fla. 5th DCA 2002).

The state concedes there is no basis in the record to find an affirmative waiver and the error is not harmless. Accordingly, we reverse and remand for a new trial. See Rojas v. State, 552 So.2d 914 (Fla.1989).

REVERSED and REMANDED.

COBB, SHARP, W., and GRIFFIN, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

830 So. 2d 950, 2002 Fla. App. LEXIS 17172, 2002 WL 31626249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burgess-v-state-fladistctapp-2002.

Opinion

Related

Cite This Page — Counsel Stack