Martin v. State, 342 So. 2d 501 (Fla. 1977). · Go Syfert
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Martin v. State, 342 So. 2d 501 (Fla. 1977). Cases Citing This Book View Copy Cite
66 citation events (13 in the last 25 years) across 4 distinct courts.
Strongest positive: JOSHUA CHARLES CARVER vs STATE OF FLORIDA (fladistctapp, 2022-10-03)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 22 distinct citers.
discussed Cited as authority (rule) JOSHUA CHARLES CARVER vs STATE OF FLORIDA
Fla. Dist. Ct. App. · 2022 · confidence medium
See Suarez Albo v. State, 300 So. 3d 1243 (Fla. 3d DCA 2020); see also Gordon v. State, 219 So. 3d 189 , 197 n.8 (Fla. 3d DCA 2017) (“For example, in a homicide prosecution, the jury is not permitted to consider any non-homicide lesser-included offenses (e.g., aggravated battery) even if such lesser-included offenses are subsumed within and necessarily established by proof of the murder charge, unless there is some disputed issue of fact (and some evidence to support a theory) regarding an intervening cause of death.”); State v. Barritt, 531 So. 2d 338, 339 (Fla. 1988); Martin v. State, 34…
discussed Cited as authority (rule) TERRENCE BARNETT v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · confidence medium
Barnett begins his argument with the proposition that in a murder prosecution, the trial court may not instruct the jury on nonhomicide lesser included offenses because "where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide." Martin v. State, 342 So. 2d 501, 503 (Fla. 1977), superseded on other grounds by, Fla. R.
discussed Cited as authority (rule) TERRENCE BARNETT v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · confidence medium
Barnett begins his argument with the proposition that in a murder prosecution, the trial court may not instruct the jury on nonhomicide lesser included offenses because "where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide." Martin v. State, 342 So. 2d 501, 503 (Fla. 1977), superseded on other grounds by, Fla. R.
cited Cited as authority (rule) Gordon v. State
Fla. Dist. Ct. App. · 2017 · confidence medium
Martin v. State, 342 So.2d 501, 503 (Fla. 1977) (superseded on other grounds by Fla. R.
discussed Cited as authority (rule) Deparvine v. State
Fla. · 2008 · confidence medium
State v. Williams, 198 So.2d 21, 22 (Fla. 1967) (quoting Washington v. State, 86 Fla. 533 , 98 So. 605 , 608 (1923), wherein a declaration emanating two minutes after a shooting was admitted); see also Johnson v. State, 314 So.2d 248, 251 (Fla. 1st DCA 1975) (applying a four-pronged test: the statement must be the natural emanation or outgrowth of the act or occurrence in litigation, made contemporaneously with the act of violence, made voluntarily and spontaneously, and made without any indication of reflection or premeditation); Elmore v. State, 291 So.2d 617, 619 (Fla. 4th DCA 1974) (applyi…
cited Cited as authority (rule) Acosta v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
Martin v. State, 342 So.2d 501, 502 (Fla.1977); Weir v. State, 777 So.2d 1073 (Fla. 4th DCA 2001).
discussed Cited as authority (rule) Humphrey v. State
Fla. Dist. Ct. App. · 1997 · confidence medium
Defendant acknowledges the general rule that “where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide.” Martin v. State, 342 So.2d 501, 503 (Fla.1977).
discussed Cited as authority (rule) Pope v. State
Fla. · 1996 · confidence medium
A battery instruction is improper in a homicide case. "[W]here a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide." Martin v. State, 342 So.2d 501, 503 (Fla.1977) ("Whether an aggravated assault occurred as part of a crime that culminated in the death of the victim is patently immaterial.").
discussed Cited as authority (rule) State v. Barritt
Fla. · 1988 · confidence medium
The First District perceived some lack of clarity, however, between these decisions and our statement in Martin v. State, 342 So.2d 501, 502 (Fla. 1977), that where a homicide has taken place, "proper jury instructions are limited to those charges involving lawful and unlawful homicide," id. at 502 , and certified the question presented.
discussed Cited as authority (rule) Barritt v. State
Fla. Dist. Ct. App. · 1987 · confidence medium
We also note the state's argument supported by Martin v. State, 342 So.2d 501, 502 (Fla. 1977), that where a homicide has taken place "proper jury instructions are limited to those charges involving lawful and unlawful homicide".
discussed Cited as authority (rule) Vause v. State
Fla. · 1985 · confidence medium
Pragmatically, however, it would make little sense to prosecute the lesser offense since "[t]he death of the victim is not in issue; it is an incontrovertible fact" and "[w]hether an aggravated assault occurred as part of a crime that culminated in the death of the victim is patently immaterial." Martin v. State, 342 So.2d 501, 502, 503 (Fla. 1977).
discussed Cited as authority (rule) Thomas v. State
Fla. Dist. Ct. App. · 1983 · confidence medium
As the Court stated in Martin v. State, 342 So.2d 501, 502 (Fla.1977): [I]n cases such as that under review the trial judge need not worry about invading the province of the jury if he restricts his instructions to those involving lawful and unlawful homicide.
cited Cited as authority (rule) Lewis v. State
Fla. · 1979 · confidence medium
Whether an aggravated assault occurred as part of a crime that culminated in the death of the victim is patently immaterial. 342 So.2d at 502-03 (emphasis supplied).
discussed Cited as authority (rule) Thomas v. State
Fla. Dist. Ct. App. · 1977 · confidence medium
The second erosion of Brown seems to us to have come from the Supreme Court itself when it “. . . specifically held that in cases involving homicide, proper jury instructions are limited to those charges involving lawful and unlawful homicide.” Martin v. State, 342 So.2d 501, 502 (Fla. 1977).
discussed Cited "see" Thomas Daugherty v. State of Florida (2×)
Fla. · 2017 · signal: see · confidence high
See Martin v. State, 342 So.2d 501, 503 (Fla. 1977) (stating that "we hold that where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide.”), superseded on other grounds by Fla. R.
discussed Cited "see" Youmans v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Martin v. State, 342 So.2d 501 (as a general rule, where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide; since the death of the victim is not in issue, the factfinder’s duty is to ascertain whether the defendant caused the victim’s death, and, if so, whether the homicide was justifiable or unjustifiable); cf. Drotar v. State, 433 So.2d 1005 (Fla. 3d DCA 1983).
cited Cited "see" State v. Fields
S.C. · 1994 · signal: see · confidence high
See Martin v. State, 342 So. (2d) 501 (Fla. 1977); Commonwealth v. Myers, 356 Mass. 343 , 252 N.E. (2d) 350 (1969).
discussed Cited "see" Standard Jury Instructions-Criminal Cases
Fla. · 1992 · signal: see · confidence high
See certified question in Barritt v. State, 517 So.2d 65 (Fla. 1st DCA 1987), rev'd, 531 So.2d 338 (Fla. 1988). [*a] See Scurry v. State, 521 So.2d 1077 (Fla. 1988). [*b] But see Martin v. State, 342 So.2d 501 (Fla. 1977). [*c] But see Smith v. State, 330 So.2d 526 (Fla. 4th DCA 1976), and Murray v. State, 328 So.2d 501 (Fla. 4th DCA 1976). [*d] See Taylor v. State, 444 So.2d 931 (Fla. 1984). [*e] Rotenberry v. State, 468 So.2d 971 (Fla. 1985) [*f] See Higgins v. State, 565 So.2d 698 (Fla. 1990). [*g] But see Richardson v. State, 523 So.2d 746 (Fla. 5th DCA 1988); Sands v. State, 542 So.2d 436…
discussed Cited "see" In Re Stan. Jury Instr. in Criminal Cases (2×)
Fla. · 1989 · signal: see · confidence high
See certified question in Barritt v. State, 517 So.2d 65 (Fla. 1st DCA 1987). [***] See Scurry v. State, 521 So.2d 1077 (Fla. 1988). [****] But see Martin v. State, 342 So.2d 501 (Fla. 1977). [*****] But see Smith v. State, 330 So.2d 256 [526] (Fla. 4th DCA 1976), and Murray v. State, 328 So.2d 501 (Fla. 4th DCA 1976). [******] See Taylor v. State, 444 So.2d 931 (Fla. 1984). [*******] But see Martin v. State, 342 So.2d 501 (Fla. 1977). [********] Provided that charged offense is a second degree felony under section 893.13(1)(a)1. [*********] An instruction of simple possession may be required.
cited Cited "see" Barton v. State
Fla. Dist. Ct. App. · 1987 · signal: see · confidence high
See Martin v. State, 342 So.2d 501 (Fla. 1977).
cited Cited "see" Green v. State
Fla. · 1985 · signal: see · confidence high
See Martin v. State, 342 So.2d 501 (Fla. 1977); Brown v. State, 124 So.2d 481 (Fla. 1960).
cited Cited "see" Bean v. State
Fla. Dist. Ct. App. · 1985 · signal: see · confidence high
See Martin v. State, 342 So.2d 501 (Fla. 1977); Brown v. State, 245 So.2d 68 (Fla. 1971).
Oscar Milton MARTIN, Petitioner,
v.
STATE of Florida, Respondent.
47343.
Supreme Court of Florida.
Feb 3, 1977.
342 So. 2d 501
Sundberg.
Cited by 48 opinions  |  Published

David J. Busch, Asst. Public Defender, and Ted Mack, Sp. Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.

SUNDBERG, Judge.

Petitioner seeks certiorari review of the decision of the District Court of Appeal, First District, which affirmed his conviction of third degree murder. We have jurisdiction of this cause under Article V, Section 3(b)(3), Florida Constitution, because the decision of the District Court, reported at 310 So.2d 747, conflicts with Appell v. State, 250 So.2d 318 (Fla. 4th DCA 1971), Elmore v. State, 291 So.2d 617 (Fla. 4th DCA 1974), and Herman v. State, 275 So.2d 264 (Fla. 4th DCA 1973).

On October 12, 1973, petitioner Martin was charged by information with second degree murder. This charge arose from the[*502] shooting death of one William Peck. At the close of the evidence at petitioner's trial, petitioner's attorney requested an instruction on aggravated assault as a lesser included offense of second degree murder. The court refused to give this instruction, and defense counsel duly objected. Martin was convicted of murder in the third degree. The District Court affirmed on appeal, and that decision is the subject of this review.

Petitioner asserts that under Rule 3.490, Fla.R.Crim.P., and Brown v. State, 206 So.2d 377 (Fla. 1968) [hereinafter Brown I], the jury should have been instructed on aggravated assault as a lesser included offense of second degree murder. In Brown I, Justice Thornal enumerated the four categories of lesser included offenses. Category four, which the parties agree is the relevant category in this cause, includes offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence adduced at trial. If the accusation (allegata) contains the necessary elements of a specific lesser included offense, and these elements are supported by the evidence (probata), then the jury should be instructed on that offense. Id. at 383.

Both petitioner and respondent dedicate substantial portions of their briefs to argument regarding the sufficiency of the allegata and probata needed to support an instruction on aggravated assault. However, a careful reading of our decision in Brown v. State, 245 So.2d 68 (Fla. 1971) [hereinafter Brown II] obviates such discussion. In this case, it is specifically held that in cases involving homicide, proper jury instructions are limited to those charges involving lawful and unlawful homicide. In reaching this decision, the Court quoted Sadler v. State, 222 So.2d 797, 799-800 (Fla. 2d DCA 1969), in part as follows:

"`The trial judge did appropriately instruct the jury as to all degrees of murder, manslaughter, justifiable homicide, and excusable homicide, all having to do with the death of the victim.
* * * * * *
"`What we have here was either unlawful homicide or lawful homicide. The death of a human being at the hands of defendant Sadler was concededly involved. If defendant's contention as to "lesser included offenses" is sound, then the trial Judge would have been required, upon request, to run down the gamut of the criminal lexicon to minor petty offenses such as disorderly conduct or disturbing the peace. This was a death case, not an assault case. We hold there is no merit to this point.'" (emphasis in the original) 245 So.2d at 75.

The above rationale, which was enunciated in the Sadler case, adopted by this Court in Brown II, and followed by the First District in the case sub judice, is eminently sensible. While aggravated assault may technically qualify as a category four lesser included offense of murder, no rational purpose is served by instructing on aggravated assault. We have in the past denounced the practice in which a trial judge unilaterally determines that there is such overwhelming evidence to convict on the crime charged, that he refuses to instruct the jury on a lesser offense. State v. Terry, 336 So.2d 65 (Fla. 1976). As pointed out in Hand v. State, 199 So.2d 100, 102 (Fla. 1967):

"In our opinion such judicial determination at trial level obviously takes a most critical evidentiary matter from the proper province of the jury and vests it improperly as a matter of law with the trial judge."

However, in cases such as that under review the trial judge need not worry about invading the province of the jury if he restricts his instructions to those involving lawful and unlawful homicide. As pointed out by the District Court, "What we have here is the death of a human being which was either unlawful homicide or lawful homicide." The death of the victim is not in issue; it is an incontrovertible fact. The jury's duty is to ascertain whether the defendant caused the victim's death, and, if so, whether the homicide was justifiable or unjustifiable. If the jury finds that an unlawful homicide has occurred, they must[*503] then determine what degree of murder or manslaughter is involved. Whether an aggravated assault occurred as part of a crime that culminated in the death of the victim is patently immaterial. The folly involved in making this determination is evidenced by the parties' briefs in this cause. Petitioner argues that there is sufficient allegata and probata to support an aggravated assault instruction. Respondent counters that since there was no allegation or proof that the victim had a well-founded fear that violence was imminent, no instruction on assault is proper. This Court must question what possible relevancy there is in determining whether or not a victim was "put in fear" before he was shot to death. It is most certainly of no concern to the victim. In essence, the parties are arguing that if it can be shown that the defendant killed his victim after putting him in fear of violence, he may be convicted of a crime of a lesser degree than if it is shown that he killed his victim without first putting him in fear. There is obviously no rational basis for this argument.

In light of the above discussion, we hold that where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide. This is in accord with our previous decision in Brown II. To the extent that Appell, Elmore, and Herman, supra, conflict with this decision, they are overruled.

The judgment of the District Court of Appeal, First District, is approved, and the writ of certiorari is discharged.

OVERTON, C.J., and ADKINS, BOYD, ENGLAND and KARL, JJ., concur.

HATCHETT, J., dissents.