¶1Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Asst. Public Defender, for appellant.
¶2Robert A. Butterworth, Atty. Gen., and Michael J. Neimand and Richard Polin, Asst. Attys. Gen., and Denise Herman, Certified Legal Intern, for appellee.
¶3Before HUBBART, COPE and LEVY, JJ.
¶4PER CURIAM.
¶5George Miller appeals his conviction for manslaughter. We reverse.
¶6In giving the standard jury instruction on manslaughter the trial judge omitted the final sentence which states, "However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms." Based on the controlling and indistinguishable authority of Rojas v. State,552 So.2d 914 (Fla. 1989), we reverse and remand for a new trial.
¶7The State concedes that Rojas is applicable but contends that footnote 3 dictates that the rule is otherwise when, as was true here, there is a full instruction on justifiable and excusable homicide. We disagree. The logic of Rojas dictates that the omitted sentence must be given regardless of the version of the instruction on justifiable and excusable homicide. Footnote 3 refers only to the sufficiency of the justifiable and excusable homicide instructions given in Rojas and does not address the issue presently before us.
¶8Reversed and remanded for new trial.