long form instruction in Florida

1992In Smith , our supreme court noted that “failure to give the long-form instruction when it was not requested did not constitute fundamental error.” Id. at 310 .

1992We recognize that in State v. Smith, 573 So.2d 306 (Fla.1990), the Florida Supreme Court indicated that “the long form standard jury instruction on excusable homicide also may mislead.” See also, Spector v. State, 593 So.2d 565 (Fla. 4th DCA 1992); Jones v. State, 591 So.2d 1023 (Fla. 3d DCA 1991); Radillo v. State, 582 So.2d 634 (Fla. 3d DCA 1991), rev. denied, 583 So.2d 1037 (Fla.1991).

1991Although recognizing that both the short-form instruction and the long-form instruction on excusable homicide could be misleading, the Court held: [T]o hold fundamental error occurred because of the failure to give the long-form instruction on excusable homicide when it was not requested "would place an unrealistically severe burden upon trial judges concerning a matter which should properly be within the province and responsibility of defense counsel as a matter of trial tactics and strategy." Smith [ v. State, 539 So.2d 514, 517 (Fla. 2d DCA 1989)].

1990In this respect, we agree with the district court when it said that to hold fundamental error occurred because of the failure to give the long-form instruction on excusable homicide when it was not requested "would place an unrealistically severe burden upon trial judges concerning a matter which should properly be within the province and responsibility of defense counsel as a matter of trial tactics and strategy." Smith, 539 So.2d at 517 .

1992Bowes v. State, 500 So.2d 290 (Fla. 3d DCA 1986), rev. denied, 506 So.2d 1043 (Fla.1987), relied upon by Gillen before the trial court, focused on the short form excusable homicide instruction.

1991See State v. Smith, 573 So.2d at 311 , commenting on Blitch v. State, 427 So.2d 785 (Fla. 2d DCA 1983), and Bowes v. State, 500 So.2d 290 (Fla. 3d DCA 1986), rev. denied, 506 So.2d 1043 (Fla. 1987). [3] We note that in order to avoid the possibility of further confusion on this issue, the Florida Supreme Court took the admirable step of amending both the short-form and the long-form standard jury instructions on "excusable homicide." State v. Smith, 573 So.2d at 311-12 .

1991See State v. Smith, 573 So.2d at 311 , commenting on Blitch v. State, 427 So.2d 785 (Fla. 2d DCA 1983), and Bowes v. State, 500 So.2d 290 (Fla. 3d DCA 1986), rev. denied, 506 So.2d 1043 (Fla. 1987). [3] We note that in order to avoid the possibility of further confusion on this issue, the Florida Supreme Court took the admirable step of amending both the short-form and the long-form standard jury instructions on "excusable homicide." State v. Smith, 573 So.2d at 311-12 .

1991Id.; State v. Smith, 573 So.2d at 311; see Hoffert v. State, 559 So.2d 1246, 1248-49 (Fla. 4th DCA), review denied, 570 So.2d 1306 (Fla.1990); see also Bowes.

1989Fundamental error has been defined as `error which goes to the foundation of the case or goes to the merits of the cause of action.' Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970).

1989Although the failure to give a long-form instruction may be error, Smith v. State, 539 So.2d 514 (Fla. 2d DCA 1989); Segars v. State, 537 So.2d 1052 (Fla. 3d DCA 1989), it is incumbent on defendant to object unless "the incompleteness of the instruction constituted fundamental error." Segars, 537 So.2d at 1053 ; see Castor v. State, 365 So.2d 701 (Fla. 1978).