McNeal v. State

662 So. 2d 373, 1995 Fla. App. LEXIS 9928, 1995 WL 559936

Opinion

PER CURIAM.

Sheldrick Lee McNeal appeals his conviction for second-degree murder after a jury trial. The trial court gave an incomplete instruction to the jury on excusable homicide by omitting paragraphs one and three as set forth in Standard Jury Instructions — Criminal Cases No. 92-1, 603 So.2d 1175, 1176-78 (Fla.1992). See also Standard Jury Instructions in Criminal Cases (91-1), 639 So.2d 602 (Fla.1994). Although defense counsel repeatedly expressed satisfaction with the proposed instruction that was given by the court, failure to give the correct instruction is fundamental error. Rojas v. State, 552 So.2d 914 (Fla.1989); Stallings v. State, 634 So.2d 784 (Fla. 5th DCA 1994); Blandon v. State, 657 So.2d 1198 (Fla. 5th DCA 1995).

We vacate the judgment and remand for a new trial.

JUDGMENT VACATED; REMANDED.

PETERSON, C.J., and GRIFFIN and THOMPSON, JJ., concur.