McCray v. State

846 So. 2d 1253, 2003 Fla. App. LEXIS 8720, 2003 WL 21338612

Opinion

PER CURIAM.

The appellant challenges a manslaughter conviction, arguing that the court erred in the manslaughter instruction by failing to explain that this offense does not encompass justifiable or excusable homicide. As indicated in Rojas v. State, 552 So.2d 914 (Fla.1989), manslaughter is a residual offense which requires such an explanation for a proper definition of the crime. See also, e.g., State v. Lucas, 645 So.2d 425 (Fla.1994). Furthermore, the failure to refer to justifiable and excusable homicide in connection with the manslaughter instruction is fundamental error. E.g. Lucas; Rojas. The appealed order is therefore reversed and the case is remanded.

ALLEN, C.J., WEBSTER and BROWNING, JJ., concur.