Hope v. State

District Court of Appeal of Florida

Hope v. State

655 So. 2d 1141, 1995 WL 317657

CourtDistrict Court of Appeal of Florida

DecidedMarch 24, 1995

DocketNo. 94-01139

StatusPublished

This text of 655 So. 2d 1141 (Hope 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.

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Hope v. State, 655 So. 2d 1141, 1995 WL 317657 (Fla. Ct. App. 1995).

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Opinion

CAMPBELL, Acting Chief Judge.

Appellant challenges his judgment and sentence for attempted first degree murder with a firearm. We find merit only in the issue concerning the error in the written judgment entered by the trial court.

Appellant was charged with attempted first degree murder with a firearm. Appellant was found guilty of attempted second degree murder with a firearm. The state concedes that the written judgment erroneously adjudicated appellant guilty of the offense as charged. Thus, this case must be affirmed and remanded so that the sentence conforms to the trial court’s oral pronouncement.

Secondly, appellant contends that the trial court should have instructed the jury on manslaughter pursuant to section 782.11, Florida Statutes (1991), since he alleges he shot the victim only after the victim pushed him. We disagree. In State v. Carrizales, 356 So.2d 274 (Fla.1978), the supreme court stated that a person cannot justify killing another in self-defense unless he has used all reasonable means to avoid the danger and is not entitled to instruction based on section 782.11.

We affirm appellant’s conviction for attempted second degree murder with a fire[1142]*1142arm and remand for the trial court to correct the written judgment to so reflect.

THREADGILL and QUINCE, JJ., concur.

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