Florida/Georgia Personal Injury & Workers Compensation

...Before Lopez reached Gonzalez, Carrizales fired two shots, one of which struck Gonzalez, who died shortly thereafter of a gunshot wound. Carrizales complains that the state court failed to give a requested jury instruction on the content of Fla.Stat.Ann. § 782.11 (West 1976), which, he says, if applicable, would make the homicide manslaughter, a second degree felony, rather than first degree murder....

...The Florida Supreme Court has specifically rejected that exact proposition in this case in State v. Carrizales, 356 So.2d 274, 275-76 (Fla.1978). The Court held that it was not error for the trial judge to refuse the instruction, and that the defense incorporated in section 782.11 was not conceptually related to the defense of self-defense....

...A state’s interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved. Bronstein v. Wainwright, 646 F.2d 1048, 1050 (5th Cir.1981). The pronouncement by the Florida Supreme Court that section 782.11 does not encompass the defense presented by Carrizales at his trial is binding on this Court....

...It has never been alleged by Carrizales that an adequate jury instruction on self-defense was not given. The Florida Supreme Court specifically observed that such an instruction had been given. Carrizales’s trial would not have been rendered fundamentally unfair by the failure of the trial court to give the instruction on section 782.11, even if defendant’s interpretation of the statute was correct....

...Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee. ENGLAND, Chief Justice. This case is before us on transfer of an appeal commenced in the Fourth District Court of Appeal. [1] The court directly and initially passed on the validity of section 782.11, Florida Statutes (1975), which makes it a second-degree felony to unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other *231 unlawful act, or after such attempt shall have failed......

...Cobb was indicted on two counts of unnecessary killing to prevent an unlawful act, and, after his motion to dismiss the indictment was denied, was tried and found guilty of the unnecessary killing of Eldridge. [2] In this appeal, he raises several points for our consideration. Cobb first asserts that section 782.11 is unconstitutionally vague, in that the phrase "unnecessarily kill" lacks the explicit meaning necessary to apprise men of common understanding of the conduct to which it applies....

...The fact that specific acts of chastisement are not enumerated, an impossible task at best, does not render the statutory standard void for vagueness. Criminal laws are not "vague" simply because the conduct prohibited is described in general language. [3] When the words "unnecessarily kill" in section 782.11 are considered together with the remainder of chapter 782, they are sufficiently precise to meet the constitutional standard for definiteness in penal statutes....

...Homicides committed while resisting another's unlawful act are punishable only if not excusable, as provided in section 782.03, Florida Statutes (1975), or if not justifiable, as provided in section 782.02 or chapter 776, Florida Statutes (1975). Read with these provisions, section 782.11 is not impermissibly vague....

...o support Cobb's asserted belief that deadly force was necessary. Cobb next asserts that the trial court erred in giving jury instructions both on general manslaughter and on culpable negligence, [4] inasmuch as an "unnecessary killing" described in section 782.11 is a crime separate and distinct from general manslaughter....

...Cobb's conviction and sentence. It is so ordered. ADKINS, BOYD, OVERTON, SUNDBERG and HATCHETT, JJ., concur. ALDERMAN, J., concurs in part and dissents in part with an opinion. ALDERMAN, Justice, concurring in part, dissenting in part. I agree that section 782.11 is constitutional; however, I believe that the uncontradicted evidence in this case establishes that the killing was justified....

...he provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [5] These instructions need not be applicable to every prosecution under section 782.11....

...Under those circumstances, as under the instant case, there are no "vices inherent in an unconstitutionally vague statute", simply because there exists no statute. In any event, our decision in Cobb v. State, 376 So.2d 230 (Fla. 1979), may well be dispositive of this issue. Cobb involved a vagueness challenge against section 782.11, Florida Statutes, which makes it a felony to "unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed ..." In upholding the validity of that statute we stated: When the words "unnecessarily kill" in section 782.11 are considered together with the remainder of chapter 782, they are sufficiently precise to meet the constitutional standard for definiteness in penal statutes....

...Homicides committed while resisting another's unlawful act are punishable only if not excusable, as provided in section 782.03, Florida Statutes (1975), or if not justifiable, as provided in section 782.02 or chapter 776, Florida Statutes (1975). Read with these provisions, section 782.11 is not impermissibly vague....

...The judge gave the jury standard instructions which accurately and comprehensively reflected the law of manslaughter. Similarly unavailing is appellant's argument that he was entitled to an instruction on an unnecessary killing to prevent an unlawful act under section 782.11, Florida Statutes (1977)....

...fought with simply walked out the front door. Since the issue of self-defense was susceptible to different views of the facts and testimony, the motion for judgment of acquittal was properly denied. Alternatively, appellant argues that, pursuant to section 782.11, Florida Statutes (1994), [1] the motion for judgment of acquittal should have been granted on the murder charge sending only a manslaughter charge to the jury. This argument is based on the assumption that self-defense was established. As previously discussed, the question of whether the shooting was in self-defense is a controverted issue in the testimony. An unnecessary killing pursuant to section 782.11 is not the same as a killing in self-defense. Furthermore, a defendant charged with murder who claims self-defense is not entitled to an instruction based on section 782.11 because the standard jury instruction on self-defense adequately covers unnecessary killings under claim of self-defense....

...615, 136 L.Ed.2d 539 (1996). Since appellant sought to exclude or otherwise preclude introduction of the tape, and did not attempt to introduce it himself, we find no abuse of discretion. AFFIRMED. PETERSON and THOMPSON, JJ., concur. NOTES [1] The 1994 version of section 782.11 provides, "Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit a felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslau...

...ed constitutes "manslaughter," and on conviction such person shall be punished "by existing law relating to manslaughter." [2] See § 782.08, Fla. Stat. (1993) (assisting selfmurder); Id. § 782.09 (the willful killing of an unborn quick child); Id. § 782.11 (unnecessary killing to prevent an unlawful act).

...er because it defines a material portion of the offense charged. In this context it isn't necessary that it be predicated upon admitted evidence; it is appropriate, indeed mandatory, otherwise. We further observe that correlatively the provisions of § 782.11, F.S.A., are also applicable to this case....

...f defense warrant. [7] Here, for example, if the jury were fully charged on "justifiable homicide," and did not find that it was necessary for appellant to kill "Rocky" Doss in attempting to preserve the peace, and they were also fully charged under § 782.11, supra, and found that the killing was unnecessary, notwithstanding that it may have been committed in a lawful attempt to prevent an unlawful act, [8] then the offense would be manslaughter even if the killing were intentional or might otherwise be second degree murder....

...In accord with its duty, then, to fully inform the jury on the law applicable both to the offense charged and to relevant defenses toward which there was some evidence, the court should have completely defined "justifiable homicide" as provided in § 782.02(2), F.S.A., and charged on the provisions of § 782.11, F.S.A....

...y a failure either to properly object to such fatal omission or by a failure to specifically request a complete charge thereon. [9] The omission was necessarily prejudicial and misleading and requires a reversal. [10] As to the omission to charge on § 782.11, supra, while not *100 of itself reversible when no request is made therefore, [11] it is nonetheless error in our view and because it was relevant to a prima facie defense should have been given in an abundance of caution whether requested or not....

...District Court of Appeal, Second District, reported at 345 So.2d 1113 (Fla. 2d DCA 1977), which is alleged to be in conflict with Snell v. State, 302 So.2d 770 (Fla. 1st DCA 1974), upon the issue of whether the trial judge must instruct the jury on Section 782.11, Florida Statutes (1975), [1] when the accused's defense is self-defense and where the trial judge instructs on the applicable degrees of homicide, excusable homicide, justifiable homicide, and self-defense. In Snell, the District Court of Appeal, First District, held that the trial judge was not required to instruct on Section 782.11 while in the instant cause, the District Court of Appeal, Second District, found that the judge is so required (Boardman, C.J., dissenting)....

...Consequently, he was forced to fire at Gonzalez in self-defense. However, two witnesses for the State gainsaid this testimony, stating that Gonzalez was only talking to friends when he was shot. During the charge conference, counsel for respondent requested a jury instruction on Section 782.11, Florida Statutes (1975)....

...Respondent was adjudicated guilty of first degree murder and sentenced to imprisonment for life. A timely direct appeal to the District Court of Appeal, Second District, resulted in a decision reversing and remanding for a new trial on the grounds that respondent was entitled to a jury instruction on Section 782.11, Florida Statutes (1975). The competing philosophies as to whether an accused who relies on self-defense is entitled to an instruction on Section 782.11 are ably articulated by Judge McCord who concurred specially in Snell and by the majority opinion of the District Court of Appeal, Second District, in the instant cause....

..... ." In a first degree murder trial where the defense is self-defense, if the jury finds that the defendant unnecessarily killed the decedent, it can find him guilty of either first degree murder, second degree murder, or manslaughter. If, however, § 782.11, Florida Statutes were applicable in such a case and the court charged the jury thereon, the charge would create an erroneous impression in the minds of the jurors that if the defendant was not acquitted, he could only be found guilty of manslaughter....

...ause is remanded to that court for proceedings not inconsistent with the views expressed herein and for consideration of respondent's remaining points on appeal. It is so ordered. OVERTON, C.J., and BOYD, ENGLAND and HATCHETT, JJ., concur. NOTES [1] § 782.11, Fla....

...We agree and, therefore, reverse and remand for a new trial. The record reflects that the jury interrupted its deliberations to request "clarification of the difference between second-degree murder and manslaughter." The trial judge, who initially had instructed on second degree murder, manslaughter under section 782.11, and justifiable homicide, repeated his instruction on second degree murder and manslaughter but did not reinstruct on justifiable homicide....

...de in order to provide a complete definition of manslaughter, which is a residual offense. See § 782.07, Fla. Stat. (1981); Cobb v. State, 376 So.2d 230, 231 (Fla. 1979) (homicide committed while resisting another's unlawful act is punishable under section 782.11 only if not excusable or not justifiable)....

the jury on “unnecessary killing” pursuant to Section 782.11, Florida Statutes (1983), when the accused

FRANK D. UPCHURCH, Jr., Judge. The state appeals from an order dismissing an indictment which had charged Officer Edward Kadet with unnecessary killing to prevent an unlawful act, a violation of section 782.11, Florida Statutes (1981)....

...The court below found that the facts presented did not constitute a prima facie case of violation of the statute. The court reasoned that unless a killing was committed in an attempt to resist or stop an unlawful act independent from one directed at the eventual defendant, here Officer Kadet, the provisions of section 782.11, would not apply....

...s Ka-det when Kadet fired. The question on which this case turns is whether proof of an underlying, independent and unlawful act above and apart from the force directed at the accused is required to establish a prima facie case of manslaughter under section 782.11. Section 782.11 provides as follows: Whoever shall unnecessarily kill another, either while resisting an attempt by such *390 other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed...

...State, 368 So.2d 607 (Fla. 3d DCA 1979); Whitehead v. State, 245 So.2d 94 (Fla.2d DCA 1971). In Carrizales , the Florida Supreme Court held that where a defendant is charged with first degree murder and claims self-defense, the court is not required to instruct on section 782.11 when there is no evidence that an independent unlawful act has been committed....

...Furthermore, the court opined that the instructions on self-defense adequately cover an unnecessary killing under a claim of self-defense. Carrizales, 356 So.2d at 275 . In Cobb , the Florida Supreme Court upheld a conviction for unnecessary killing pursuant to section 782.11 where the evidence showed that the defendant, a police officer, unnecessarily killed two trespassers during an attempt to arrest them. In that case, the court held that manslaughter described in section 782.11 is a crime separate and distinct from general manslaughter and culpable negligence....

...Therefore, the court reasoned that where the elements of general manslaughter exist in conjunction with the additional factor of resistance against another’s attempt to commit an unlawful act, a conviction for “unnecessary killing” manslaughter will stand. In Mitchell , the Third District reversed a conviction under section 782.11 where the record before it was devoid of any evidence that the victim had committed a specific felony or unlawful act when he was shot by the defendant. The defendant, a police officer, was charged with (1) manslaughter in violation of section 782.07, Florida Statutes, and (2) manslaughter by unnecessary killing to prevent an unlawful act in violation of section 782.11. After a jury trial, the defendant was acquitted of the charge of manslaughter under section 782.07, but was found guilty of manslaughter under section 782.11....

...This decision did not include a factual account of what transpired prior to the shooting but held as a matter of law that the conviction could not stand. In his special concurring opinion in Mitchell , Judge Schwartz argued that in Carrizales , the supreme court held that section 782.11 does not apply when the unlawful act allegedly committed by a decedent is the use of force directed against a defendant who claims that the killing was a justifiable act of self-defense. Further, Judge Schwartz stated that the purpose of section 782.11 is to reduce the charge when a killing might otherwise constitute first or second degree murder and where the murder is committed in resisting an attempt to commit an independent and unlawful act which does not involve force directed against the defendant. We agree with Judge Schwartz’s analysis and find that section 782.11 does not apply under the circumstances here....

...We deny these claims. Standard Criminal Jury Instruction 7.7(b) Boatman argues the court abused its discretion in denying his request for Florida Standard Jury Instruction (Criminal) 7.7(b) (“Unnecessary Killing to Prevent an Unlawful Act”), which is based on section 782.11, Florida Statutes, a manslaughter statute. Instruction 7.7(b) outlines “four elements” of “the crime of Unnecessary Killing to Prevent an Unlawful Act,” as follows: 1....

...Chapman was committing an unlawful sexual battery,” defense counsel conceded the instruction does not apply to self- defense and was “not directed at Mr. Boatman.” Moreover, Boatman overlooks State v. Carrizales, 356 So. 2d 274 (Fla. 1978), which held that a jury instruction on section 782.11 is not required “when the accused’s defense is self-defense and where the trial judge instructs on the applicable degrees of homicide, excusable homicide, justifiable homicide, and self-defense.” Id....

unnecessary killing to prevent an unlawful act, Florida Statute 782.11. The record reveals that appellant went

465 (1983). Clearly, this is not the law. Section 782.-11, Florida Statutes (1983), which states that

...B, Judge. Appellant was tried by jury and found guilty of first degree murder. He appeals the trial court’s judgment of conviction and sentence to life imprisonment. Appellant contends that the trial court erred in refusing to instruct the jury on Section 782.11, Florida Statutes, which provides that when a defendant unnecessarily kills another while resisting the other person’s attempt to commit a felony or do any other unlawful act, the defendant shall be guilty of manslaughter....

...However, two other witnesses testified for the state that Gonzalez was only talking to friends when he was shot. The jury obviously rejected appellant’s plea of self-defense. The trial judge refused appellant’s request to instruct the jury on the provisions of Section 782.11, Florida Statutes, which provides: Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall b...

...egree, punishable as provided in Sections 775.082, 775.083 or 775.-084. The jury was instructed on the degrees of homicide, justifiable homicide, excusable homicide, and self-defense; however, appellant contends that had the court also instructed on Section 782.11, the jury might well have found that appellant’s act, even though intentional, constituted manslaughter rather than murder....

...In Whitehead v. State, 245 So.2d 94 (Fla.2d DCA 1971), the defendant was charged with second degree murder. From the defendant’s own version of the homicide, it appeared that he was lawfully attempting to “keep the peace.” The court there held that Section 782.11 defines a particular substantive offense of manslaughter in and of itself....

...w applicable to his theory of defense. Koontz v. State, 204 So.2d 224 (Fla.2d DCA 1967). Here, even though appellant’s testimony was disputed by other witnesses, his version of the facts formed an evidentiary basis for the requested instruction on Section 782.11....

...me.” We cannot agree with the state’s position. While we do not have the benefit of all the facts in Snell , the majority in that case concluded that the facts there were “not such as found in Whitehead.” We believe the legislative intent of Section 782.11 was to reduce the punishment of a defendant where there was some possible justification or excuse for what the defendant did or attempted to do....

...Petitioner, represented by a special assistant public defender, filed a direct appeal raising four claims of trial court error. Exh. 2 at 8; Response at 3. On direct appeal, Petitioner argued that the trial court erred by: (1) failing to instruct the jury on manslaughter pursuant to § 782.11, Florida Statutes (2000); (2) denying Petitioner's motion to suppress when Petitioner did not speak English, could not read the Miranda warning, and did not knowingly, freely, and voluntarily waive his Miranda rights prior to interrogation;...

...offense as charged. Thus, this case must be affirmed and remanded so that the sentence conforms to the trial court’s oral pronouncement. Secondly, appellant contends that the trial court should have instructed the jury on manslaughter pursuant to section 782.11, Florida Statutes (1991), since he alleges he shot the victim only after the victim pushed him....

...We disagree. In State v. Carrizales, 356 So.2d 274 (Fla.1978), the supreme court stated that a person cannot justify killing another in self-defense unless he has used all reasonable means to avoid the danger and is not entitled to instruction based on section 782.11....

...AM. We affirm Appellant’s conviction of first-degree murder. We find no error in the trial court’s denial of Appellant’s request for a special jury instruction on the crime of manslaughter by unnecessary killing to prevent an unlawful act. See § 782.11, Fla....

...On March 7, 1977, an information was filed charging appellant, an Opa-Locka police officer, with committing the offenses of (1) manslaughter (in violation of Section 782.07, Florida Statutes) and (2) manslaughter by unnecessary killing to prevent an unlawful act (in violation of Section 782.11, Florida Statutes). After a jury trial, appellant was acquitted of the charge of manslaughter under Section 782.07, but was found guilty of manslaughter under Section 782.11....

...From the ensuing judgment of conviction and sentence, appellant brings this appeal. Among his points on appeal, appellant contends that there was insufficient proof to sustain the charge of manslaughter by unnecessary killing to prevent an unlawful act in violation of Section 782.11, Florida Statutes....

...In the instant case, the record is totally devoid of any evidence by which the jury could have determined what *608 specific felony or unlawful act the victim was attempting to commit when he was shot by appellant. Absent any proof of this essential element, appellant could not be properly convicted under Section 782.11....

...In the light of this determination, it is unnecessary for us to reach appellant’s other point on appeal which contended that the trial court erred in failing to instruct the jury on all of the essential elements required to sustain a manslaughter conviction under Section 782.11....

requested instruction on manslaughter as defined in § 782.11, Florida Statutes, and, thus, there was no error