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100 So. 3d 1152

Davis v. State

District Court of Appeal of Florida · decided 2012-06-06

Relies on 40 So. 3d 72 - Williams v. State · 552 So. 2d 914 - Rojas v. State · State v. Lucas

Decided 2012-06-06

SCHWARTZ, Senior Judge.

¶1Davis was charged with and convicted of attempted premeditated murder and now appeals. We reverse for a new trial because of two fundamental errors in the jury instructions:

1. The court omitted entirely any definition of “excusable homicide.” See State v. Lucas, 645 So.2d 425 (Fla.1994); Rojas v. State, 552 So.2d 914 (Fla.1989); Richardson v. State, 818 So.2d 679 (Fla. 3d DCA 2002).
2. The charge on attempted voluntary manslaughter as a lesser included offense required an intent to kill, which, as we have held in Coiscou v. State, 43 So.3d 123 (Fla. 3d DCA 2010) and Bass v. State, 45 So.3d 970 (Fla. 3d DCA 2010), is per se reversible error. On this point, we certify conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011).

¶2Reversed and remanded for a new trial.

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