Burke v. State

District Court of Appeal of Florida

Burke v. State

96 So. 3d 982, 2012 Fla. App. LEXIS 13198, 2012 WL 3192785

CourtDistrict Court of Appeal of Florida

DecidedAugust 8, 2012

DocketNo. 4D11-3391

StatusPublished

This text of 96 So. 3d 982 (Burke 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

Burke v. State, 96 So. 3d 982, 2012 Fla. App. LEXIS 13198, 2012 WL 3192785 (Fla. Ct. App. 2012).

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Opinion

PER CURIAM.

We affirm the denial of appellant’s motion for postconviction relief. Appellant raises two claims regarding his conviction for attempted first degree murder of his ex-wife. First, he claims that counsel was ineffective, having failed to move pre-trial to attack the information, which failed to include the word “premeditation.” Trial counsel made the challenge, and appellate counsel raised the issue on appeal. We considered the merits of the claim and affirmed. Burke v. State, 989 So.2d 648 (Fla. 4th DCA 2008). Thus, this point serves as no ground for postconviction relief.

Second, appellant claims that his counsel was ineffective for failing to request a “heat of passion” jury instruction. “In order for the defense of crime of passion to be available there must be adequate provocation ... as might obscure the reason or dominate the volition of an ordinary reasonable man.” Douglas v. State, 652 So.2d 887, 891 (Fla. 4th DCA), rev. denied, 661 So.2d 823 (Fla.1995) (internal quotations and citation omitted). We have reviewed the facts of this case and conclude that the jury instruction was not supported by the evidence.

Affirmed.

WARNER, GROSS and LEVINE, JJ„ concur.

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PER CURIAM.

We affirm the denial of appellant’s motion for postconviction relief. Appellant raises two claims regarding his conviction for attempted first degree murder of his ex-wife. First, he claims that counsel was ineffective, having failed to move pre-trial to attack the information, which failed to include the word “premeditation.” Trial counsel made the challenge, and appellate counsel raised the issue on appeal. We considered the merits of the claim and affirmed. Burke v. State, 989 So.2d 648 (Fla. 4th DCA 2008). Thus, this point serves as no ground for postconviction relief.

Second, appellant claims that his counsel was ineffective for failing to request a “heat of passion” jury instruction. “In order for the defense of crime of passion to be available there must be adequate provocation ... as might obscure the reason or dominate the volition of an ordinary reasonable man.” Douglas v. State, 652 So.2d 887, 891 (Fla. 4th DCA), rev. denied, 661 So.2d 823 (Fla.1995) (internal quotations and citation omitted). We have reviewed the facts of this case and conclude that the jury instruction was not supported by the evidence.

Affirmed.

WARNER, GROSS and LEVINE, JJ„ concur.

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Bluebook (online)

96 So. 3d 982, 2012 Fla. App. LEXIS 13198, 2012 WL 3192785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-state-fladistctapp-2012.

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