DrIrvingFinegarten wrote:
Not sure if this question has been answered before, but with the charge of second-degree murder, is it an all-or-nothing thing as far as possible verdicts go?
Is a conviction on a lesser charge, like manslaughter, still possible?
http://www.leagle.com/xmlResult.aspx?xm ... -1986-2006http://scholar.google.com/scholar_case? ... i=scholarrLouisy v. State, 667 So. 2d 972, 974
(Fla. Dist. Ct. App. 1996) (“Even if the weight of the evidence is overwhelmingly in favor of the state’s
charge,
the defendant is entitled to an instruction on a lesser offense as to which there is any evidence.”
(quoting Kolaric v. State, 616 So. 2d 117, 119 (Fla. Dist. Ct. App. 1993))
So does all of this mean they
must be instructed on "lesser included crimes" ???
http://www.floridasupremecourt.org/jury ... ctions.pdf3.4 WHEN THERE ARE LESSER INCLUDED
CRIMES OR ATTEMPTS
Give before reading charges on lesser included crimes or attempts.
In considering the evidence, you should consider the possibility that although the evidence may not convince you that the defendant committed the main crime[s] of which [he] [she] is accused, there may be evidence that [he] [she] committed other acts that would constitute a lesser included crime [or crimes]. Therefore, if you decide that the main accusation has not been proved beyond a reasonable doubt, you will next need to decide if the defendant is guilty of any lesser included crime. The lesser crimes indicated in the definition of (crime charged) are:
(List — see chart that follows instruction on the crime charged.)
7.4 MURDER—SECOND DEGREE
§ 782.04(2), Fla.Stat.
To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:
1. (Victim) is dead.
2. The death was caused by the criminal act of (defendant).
3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
Definitions.
An ―act‖ includes a series of related actions arising from and performed pursuant to a single design or purpose.
An act is ―imminently dangerous to another and demonstrating a depraved mind‖ if it is an act or series of acts that:
1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
2. is done from ill will, hatred, spite, or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life.
In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.
Lesser Included Offenses
CATEGORY ONE Manslaughter 782.07 7.7
CATEGORY TWO
Third degree (felony) murder
Vehicular homicide
(Nonhomicide lessers)
Attempt
Culpable negligence
Culpable negligence
Felony battery
Aggravated battery
Aggravated assault
Battery
Assault
(page 122)
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SCHEDULE OF LESSER INCLUDED OFFENSESCOMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES
One of the difficult problems in instructing a criminal jury is to make certain that it is properly charged with respect to the degrees or categories of guilt that may be applicable to a given crime. The supreme court in Brown v. State, 206 So.2d 377 (Fla. 1968), described these categories as follows:
1. Crimes divisible into degrees
2. Attempts to commit offenses
3. Offenses necessarily included in the offense charged
4. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
Because it is often so difficult to determine these categories, the committee prepared a list of the offenses applicable to each of the crimes for which standard jury instructions had been drafted. At the same time, the committee recommended treating lesser degrees as category 3 or 4 offenses depending upon the offense and treating attempts as a category 4 offense, thereby eliminating the first two Brown categories as separate categories. In its opinion dated April 16, 1981, in which it approved the new standard jury instructions, the supreme court also approved the schedule of lesser included offenses and accepted the recommendation of the committee to consolidate the four Brown categories into two categories.
The supreme court directed that the four categories should be renumbered and designated as follows:
1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.
The court also directed that the appropriate Florida Rules of Criminal Procedure be amended to accommodate these changes. The categories of the offenses which appear on the schedule of lesser included offenses have been renumbered and designated according to the supreme court mandate.
In determining the appropriate lesser offenses for inclusion in the table, the committee followed certain guidelines:
1. No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration. See Ray v. State, 403 So.2d 956 (Fla. 1981); State v. Carpenter, 417 So.2d 986 (Fla. 1982).
2. If the definition of the crime includes the attempt or the endeavor to commit the crime, there can be no separate offense of an attempt to commit that crime, e.g., uttering, forgery, grand theft second degree, delivery of controlled substance.
3. Certain crimes do not have attempts, e.g., culpable negligence, extortion, perjury, corruption by threat against public servant, resisting officer with violence, and conspiracy.
4. Except as stated above, attempts to commit crimes generally are included unless the evidence conclusively shows that the charged crime was completed. In such case, attempt should not be instructed.
5. Some statutes provide that the penalty for certain crimes is enhanced if certain events occur during their commission. For example, under F.S. 810.02 burglary is a felony of the first degree if the burglar makes an assault or is armed with explosives or dangerous weapons. If these events do not occur but burglary is committed in a dwelling occupied by human beings, the offense is a felony of the second degree. All other burglaries are felonies of the third degree. Thus, if a defendant is charged with first degree burglary by virtue of having made an assault during the course of the burglary, the jury should be permitted to return a verdict for simple third degree burglary without the enhancement of the assault. In practice, this is similar to the concept of lesser included offenses, but since statutes of this type are couched in terms of enhancement, the schedule does not carry the lower degrees of the offenses proscribed by those statutes as lesser included offenses.
6. Under Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense.
table on page 667