Kitchen v. State

District Court of Appeal of Florida

Kitchen v. State

592 So. 2d 773, 1992 Fla. App. LEXIS 480, 1992 WL 12076

CourtDistrict Court of Appeal of Florida

DecidedJanuary 28, 1992

DocketNo. 91-187

StatusPublished

Cited by2 cases

This text of 592 So. 2d 773 (Kitchen 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

Kitchen v. State, 592 So. 2d 773, 1992 Fla. App. LEXIS 480, 1992 WL 12076 (Fla. Ct. App. 1992).

Pincite

Opinion

PER CURIAM.

Eddie Kitchen appeals his conviction and sentence for second degree murder. We reverse.

Defendant was charged with second degree murder. At trial, defendant requested an instruction on the lesser included offense of manslaughter. The trial court instructed the jury that “the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously explained those terms.” (Emphasis supplied.) However, the trial court had not explained those terms. The jury found defendant guilty of second degree murder.

The state properly concedes that defendant’s conviction must be reversed because the trial court committed fundamental error in instructing the jury on manslaughter [774]*774without defining justifiable and excusable homicide. Rojas v. State, 552 So.2d 914 (Fla.1989); Hedges v. State, 172 So.2d 824 (Fla.1965); Perez v. State, 578 So.2d 510 (Fla. 3d DCA 1991); Weiner v. State, 587 So.2d 560 (Fla. 2d DCA 1991). Compare Smith v. State, 573 So.2d 306 (Fla.1990) (short form jury instruction on justifiable and excusable homicide, followed by manslaughter instruction which refers to these definitions, is not error); State v. Schuck, 573 So.2d 335 (Fla.1991) (same). We therefore quash defendant’s conviction and remand for a new trial.

Our disposition of this issue makes it unnecessary to reach the remaining point on appeal.

Reversed and remanded.

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

PER CURIAM.

Eddie Kitchen appeals his conviction and sentence for second degree murder. We reverse.

Defendant was charged with second degree murder. At trial, defendant requested an instruction on the lesser included offense of manslaughter. The trial court instructed the jury that “the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously explained those terms.” (Emphasis supplied.) However, the trial court had not explained those terms. The jury found defendant guilty of second degree murder.

The state properly concedes that defendant’s conviction must be reversed because the trial court committed fundamental error in instructing the jury on manslaughter [774]*774without defining justifiable and excusable homicide. Rojas v. State, 552 So.2d 914 (Fla.1989); Hedges v. State, 172 So.2d 824 (Fla.1965); Perez v. State, 578 So.2d 510 (Fla. 3d DCA 1991); Weiner v. State, 587 So.2d 560 (Fla. 2d DCA 1991). Compare Smith v. State, 573 So.2d 306 (Fla.1990) (short form jury instruction on justifiable and excusable homicide, followed by manslaughter instruction which refers to these definitions, is not error); State v. Schuck, 573 So.2d 335 (Fla.1991) (same). We therefore quash defendant’s conviction and remand for a new trial.

Our disposition of this issue makes it unnecessary to reach the remaining point on appeal.

Reversed and remanded.

Cite This Page — Counsel Stack

Bluebook (online)

592 So. 2d 773, 1992 Fla. App. LEXIS 480, 1992 WL 12076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kitchen-v-state-fladistctapp-1992.

Opinion

Related

Cite This Page — Counsel Stack