Van Loan v. State, 736 So. 2d 803 (Fla. 2d DCA 1999). · Go Syfert
Search
Van Loan v. State, 736 So. 2d 803 (Fla. 2d DCA 1999). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 2 distinct cases · …before this exception applies, defense counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it. at p. 804 ✓
cited 2× by 2 distinct cases, 2003–2019 · …the trial court shoulders the responsibility to properly instruct the jury on the definitions of excusable and justifiable homicide. ✓
26 citation events (23 in the last 25 years) across 2 distinct courts.
Strongest positive: JAMES MICHAEL BRADY v. STATE OF FLORIDA (fladistctapp, 2019-11-22)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) JAMES MICHAEL BRADY v. STATE OF FLORIDA (2×)
Fla. Dist. Ct. App. · 2019 · quote attribution · 2 verbatim quotes · confidence high
before this exception applies, defense counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it.
discussed Cited as authority (rule) DONTA D. SAMS v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · confidence medium
See State v. Spencer, 216 So. 3d 481, 486 (Fla. 2017) (declining to recede from State v. Lucas, 645 So. 2d 425 (Fla. 1994), "even where there is nothing in the evidence from which a jury could conclude that a homicide or an attempted homicide was excusable or justified"); Lucas, 645 So. 2d at 427 (recognizing that "a complete instruction on manslaughter requires an explanation that justifiable and excusable homicide are excluded from the crime" and that failure to give the complete instruction is fundamental error which is not subject to a harmless error analysis where the defendant has been c…
discussed Cited as authority (rule) Charlie Williams v. State of Florida (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 2014 · confidence medium
See, e.g., Daniels v. State, 72 So.3d 227, 229 (Fla. 2d DCA 2011), quashed on other grounds, 121 *1004 So.3d 409 (Fla.2013) (concluding defense counsel’s acquiescence, silence, or argument in favor of the standard instruction on manslaughter did not constitute waiver or invited error); Paul v. State, 63 So.3d 828, 829 (Fla. 5th DCA 2011), quashed on other grounds, 137 So.3d 1021 (Fla.2014) (concluding defense counsel’s statements and failure to object did not waive fundamental error in jury instructions); Beckham v. State, 884 So.2d 969, 973 (Fla. 1st DCA 2004) (rejecting argument that cla…
discussed Cited as authority (rule) Caldwell v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
Any other holding would allow a defendant to intentionally inject error into the trial and then await the outcome with the expectation that if he is found guilty the conviction will be automatically reversed.") (footnote omitted); Fletcher v. State, 828 So.2d 460 (Fla. 5th DCA 2002); Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999) ("We note that an exception to this fundamental error rule arises when defense counsel affirmatively agrees to the omission or the alteration of a jury instruction.
discussed Cited as authority (rule) Franco v. State
Fla. Dist. Ct. App. · 2005 · confidence medium
Fletcher v. State, 828 So.2d 460, 461 (Fla. 5th DCA 2002); Richardson v. State, 818 So.2d 679 (Fla. 3d DCA 2002); Damoulakis v. State, 814 So.2d 1204 (Fla. 2d DCA 2002); Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999), rev. denied, 791 So.2d 1103 (Fla.2001).
discussed Cited as authority (rule) Pena v. State
Fla. · 2005 · confidence medium
For this assertion, Pena relies on Hill v. State, 688 So.2d 901, 906 (Fla.1996) (holding that the standard jury instruction on excusable homicide and justifiable use of deadly force was "required in order to fully instruct on the crimes comprising homicide"), Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999) (stating that the court's failure to read the definitions of excusable and justifiable homicide in all murder cases constitutes fundamental error unless defense counsel "affirmatively agrees to the omission or the alteration of a jury instruction"), Blandon v. State, 657 So.2d 1198,…
discussed Cited as authority (rule) Guardiola v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
The Damoulakis court cited Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999), for the proposition that the trial court is required to instruct the jury on excusable and justifiable homicide in all murder and manslaughter cases and that the failure to do so constitutes fundamental error. [2] See 814 So.2d at 1205 .
discussed Cited as authority (rule) Pignataro v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
Pursuant to Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999), review denied, 791 So.2d 1103 (Fla.2001), the general rule is that failure to read the definitions of excusable and justifiable homicide in all murder and manslaughter cases is fundamental error.
discussed Cited as authority (rule) Burgess v. State
Fla. Dist. Ct. App. · 2002 · confidence medium
As the attorney general points out in the state’s brief, citing Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999), a trial court must read the definitions of excusable and justifiable homicide in all murder and manslaughter cases.
cited Cited as authority (rule) Pena v. State
Fla. Dist. Ct. App. · 2002 · confidence medium
See, e.g., Rojas v. State, 552 So.2d 914 (Fla.1989); Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999); Smith v. State, 773 So.2d 1278, 1279 (Fla. 5th DCA 2000).
discussed Cited as authority (rule) Damoulakis v. State
Fla. Dist. Ct. App. · 2002 · confidence medium
A failure to give these instructions constitutes fundamental error." Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999) (citations omitted); see also Blandon v. State, 657 So.2d 1198, 1199 (Fla. 5th DCA 1995).
cited Cited "see" Richardson v. State
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See Van Loan, 736 So.2d at 804 ; Blandon v. State, 657 So.2d 1198 (Fla. 5th DCA 1995).
discussed Cited "see, e.g." Burns v. State
Fla. Dist. Ct. App. · 2015 · signal: see also · confidence medium
See also Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999) (noting "an exception to th[e] fundamental error rule arises when defense counsel affirmatively agrees to the omission or the alteration of a jury instruction,” but that before the exception applies "defense counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it”).
Retrieving the full opinion text from the archive…
Todd VAN LOAN, Appellant,
v.
STATE of Florida, Appellee.
98-02718.
District Court of Appeal of Florida, Second District.
Jul 21, 1999.
736 So. 2d 803
1999 WL 510605
Per Curiam.
Cited by 15 opinions  |  Published

[*804] Julie L. Milham, St. Pete Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Stephen D. Ake, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Todd Van Loan ("Van Loan") appeals his judgment and sentence for attempted second-degree murder. Among his other contentions, Van Loan argues that the trial court committed fundamental error by omitting from the jury instructions the definitions of excusable and justifiable homicide. We agree and reverse.

On August 5, 1997, the State filed an information charging Van Loan with the attempted first-degree murder of his wife, Starr Van Loan. The arrest affidavit alleges that Van Loan attempted to strangle his wife with an electrical cord, and beat her about the face, in the early morning hours of July 24, 1997. The case went to trial on April 17, 1998.

At the charge conference, the trial judge asked Van Loan's trial counsel for her input on the jury instructions. She asked for the standard jury instructions on attempted second-degree murder, aggravated battery, simple battery, and the defense of voluntary intoxication. She did not request instructions on attempted voluntary manslaughter, excusable homicide, or justifiable homicide. The trial judge read the requested lesser-included offense instructions and an instruction on self-defense. The trial judge also read an erroneous instruction that voluntary intoxication was a defense only to attempted first-degree murder, implying that the defense did not apply to the charges of aggravated battery or simple battery. Because we find error in the failure to give the definitions for excusable and justifiable homicide, we need not address any other issues raised by Van Loan.

A trial court must read the definitions of excusable and justifiable homicide in all murder and manslaughter cases. See Blandon v. State, 657 So.2d 1198, 1199 (Fla. 5th DCA 1995) (citing State v. Smith, 573 So.2d 306, 309-310 (Fla.1990)). A failure to give these instructions constitutes fundamental error. By omitting the definitions, the trial court fails to advise the jury as to what constitutes lawful acts versus unlawful acts. See Blandon, 657 So.2d at 1199.

We note that an exception to this fundamental error rule arises when defense counsel affirmatively agrees to the omission or the alteration of a jury instruction. See Roberts v. State, 694 So.2d 825, 826 (Fla. 2d DCA 1997) (citing Armstrong v. State, 579 So.2d 734, 735 (Fla.1991)). Before this exception applies, defense counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it. Cf. Black v. State, 695 So.2d 459, 461 (Fla. 1st DCA 1997). In the instant case, there is no indication that Van Loan's trial counsel knew that the omission was error and agreed to the omission. The trial court shoulders the responsibility to properly instruct the jury on the definitions of excusable and justifiable homicide. See Blandon, 657 So.2d at 1199-1200.

The States argues that Crawford v. State, 606 So.2d 1204 (Fla. 2d DCA 1992), controls this case. We disagree. In Crawford, the State charged the defendant with attempted first-degree murder. See id. at 1204. The jury convicted him of attempted second-degree murder. See id. at 1204. On appeal, Crawford argued that the trial court committed fundamental error by failing to instruct the jury on the lesser charge of attempted manslaughter. See id. at 1205. This court ruled that the[*805] trial court's failure to instruct a jury on lesser-included offenses to a noncapital offense is not fundamental error. See id. at 1205; McKinney v. State, 579 So.2d 80, 83-84 (Fla.1991); Manka v. State, 720 So.2d 1109, 1110 (Fla. 4th DCA 1998). Thus, Crawford is factually distinguishable from the instant case, because here the error is a failure to instruct on the definitions of excusable and justifiable homicide, and not a failure to instruct on lesser-included offenses.

We reverse Van Loan's judgment and sentence, and remand to the trial court for a new trial. On remand, the highest attempted murder charge for which the State may retry Van Loan is attempted second-degree murder. See Holmes v. State, 642 So.2d 1387, 1388 (Fla. 2d DCA 1994) (citing Marshall v. State, 529 So.2d 797, 797 n. 1 (Fla. 3d DCA 1988)).

REVERSED AND REMANDED.

WHATLEY, A.C.J., NORTHCUTT and DAVIS, JJ., Concur.