Ferguson v. State

District Court of Appeal of Florida

Ferguson v. State

477 So. 2d 584, 10 Fla. L. Weekly 1793, 1985 Fla. App. LEXIS 14463

CourtDistrict Court of Appeal of Florida

DecidedJuly 24, 1985

DocketNos. 83-2065, 83-2066

StatusPublished

This text of 477 So. 2d 584 (Ferguson 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

Ferguson v. State, 477 So. 2d 584, 10 Fla. L. Weekly 1793, 1985 Fla. App. LEXIS 14463 (Fla. Ct. App. 1985).

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Opinion

PER CURIAM.

We affirm appellant’s conviction for manslaughter and we affirm the order revoking his probation.

We note that appellant submitted a requested instruction which combined factors of justifiable and excusable homicide. The Florida Supreme Court approved the use of this type of instruction in Foreman v. State, 47 So.2d 308 (Fla.1950). Although it would have been appropriate for the trial court to have given the instruction in the form requested, its refusal to do so does not constitute reversible error because the instructions given by the judge adequately covered both justifiable homicide and excusable homicide. See Foreman v. State.

However, the court erred when it imposed the payment of restitution as a parole condition. On the authority of Monk v. State, 427 So.2d 820 (Fla. 2d DCA 1983), and Alexander v. State, 425 So.2d 1197 (Fla. 2d DCA 1983), we reverse that portion of the judgment which imposes restitution as part of appellant’s sentence and remand this case with instructions to strike that portion of the judgment. In all other respects, appellant’s sentence is affirmed.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

HERSEY, C.J., and ANSTEAD and DELL, JJ., concur.

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PER CURIAM.

We affirm appellant’s conviction for manslaughter and we affirm the order revoking his probation.

We note that appellant submitted a requested instruction which combined factors of justifiable and excusable homicide. The Florida Supreme Court approved the use of this type of instruction in Foreman v. State, 47 So.2d 308 (Fla.1950). Although it would have been appropriate for the trial court to have given the instruction in the form requested, its refusal to do so does not constitute reversible error because the instructions given by the judge adequately covered both justifiable homicide and excusable homicide. See Foreman v. State.

However, the court erred when it imposed the payment of restitution as a parole condition. On the authority of Monk v. State, 427 So.2d 820 (Fla. 2d DCA 1983), and Alexander v. State, 425 So.2d 1197 (Fla. 2d DCA 1983), we reverse that portion of the judgment which imposes restitution as part of appellant’s sentence and remand this case with instructions to strike that portion of the judgment. In all other respects, appellant’s sentence is affirmed.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

HERSEY, C.J., and ANSTEAD and DELL, JJ., concur.

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Bluebook (online)

477 So. 2d 584, 10 Fla. L. Weekly 1793, 1985 Fla. App. LEXIS 14463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-state-fladistctapp-1985.

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