DAVIS V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 10-1629

Case Date: 06/06/2012

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2012
Opinion filed June 6, 2012. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-1629 Lower Tribunal No. 07-34029 ________________

Wade Davis,
Appellant, vs.

The State of Florida,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Yvonne Colodny, Judge. Carlos J. Martinez, Public Defender, Eleventh Judicial Circuit, and Melissa Del Valle, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.

Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge. SCHWARTZ, Senior Judge.

Davis 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). Reversed and remanded for a new trial.

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