Leverett v. State

District Court of Appeal of Florida

Leverett v. State

592 So. 2d 368, 1992 Fla. App. LEXIS 322, 1992 WL 7209

CourtDistrict Court of Appeal of Florida

DecidedJanuary 22, 1992

DocketNo. 89-2542

StatusPublished

Cited by1 cases

This text of 592 So. 2d 368 (Leverett 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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Leverett v. State, 592 So. 2d 368, 1992 Fla. App. LEXIS 322, 1992 WL 7209 (Fla. Ct. App. 1992).

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Opinion

LETTS, Judge.

During a second degree murder trial, the defendant offered up some evidence of justifiable and excusable homicide and a “long-form” jury instruction was given thereon. After retiring, the jury returned for further instruction and this time was only read the “short-form” version over defendant’s objection and request for repeat of the “long-form.” We reverse.

In Reed v. State, 531 So.2d 358 (Fla. 5th DCA 1988), the Fifth District held that when a jury asks for re-instruction, such should be as complete as was the original. We think the Fifth District was correct in view of the extensive discourse on this subject in State v. Smith, 573 So.2d 306 (Fla.1990). In Smith, our supreme court noted that “failure to give the long-form instruction when it was not requested did not constitute fundamental error.” Id. at 310. It logically follows that failure to give the long-form where it is requested is error, especially when a proper objection is lodged.

We find no other error on appeal.

REVERSED AND REMANDED FOR A NEW TRIAL.

DELL and POLEN, JJ., concur.

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LETTS, Judge.

During a second degree murder trial, the defendant offered up some evidence of justifiable and excusable homicide and a “long-form” jury instruction was given thereon. After retiring, the jury returned for further instruction and this time was only read the “short-form” version over defendant’s objection and request for repeat of the “long-form.” We reverse.

In Reed v. State, 531 So.2d 358 (Fla. 5th DCA 1988), the Fifth District held that when a jury asks for re-instruction, such should be as complete as was the original. We think the Fifth District was correct in view of the extensive discourse on this subject in State v. Smith, 573 So.2d 306 (Fla.1990). In Smith, our supreme court noted that “failure to give the long-form instruction when it was not requested did not constitute fundamental error.” Id. at 310. It logically follows that failure to give the long-form where it is requested is error, especially when a proper objection is lodged.

We find no other error on appeal.

REVERSED AND REMANDED FOR A NEW TRIAL.

DELL and POLEN, JJ., concur.

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592 So. 2d 368, 1992 Fla. App. LEXIS 322, 1992 WL 7209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leverett-v-state-fladistctapp-1992.

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