Ferguson v. State

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

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.