Scurry v. StateScurry v. State
Robert A. Butterworth, Atty. Gen. and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for respondent.
OVERTON, Justice.
This is a petition to review Scurry v. State, 506 So.2d 4 (Fla. 2d DCA 1987), in which the district court held that Scurry, thе driver of the getaway vehicle in a convenience store robbery/killing, was not entitled to an instruction on second-degree murder as a lesser offense to the charge of first-degree felony murder. We find conflict with Linehan v. State, 476 So.2d 1262 (Fla. 1985). We have jurisdiction.
The petitioner and his codefendant, Danny Glover, were indicted for first-degree felony murder and armed robbery. Glover pleaded guilty and agreed to testify against the petitioner at trial. Glover‘s testimony showed that petitioner drove Glover to a convenience store, handed him a gun, and
At trial, the state claimed this evidence established that Scurry had aided and abetted Glover, who was the actual perpetrator of the crimes, and, consequently, Scurry was guilty of first-degree felony murder. Scurry requested a jury instruction on second-degree murder as a lessеr included offense of first-degree felony murder. The trial court denied this request, but did give the designated necessary lesser offense instruction on manslaughter. The jury returned a guilty verdict on both first-degree felony murder and robbery.
The Second District Court of Appeal affirmed the trial court, holding that, although second-degree murder is a lesser included offense of first-degree felony murder, it is not a necessarily lesser included offense аnd was not applicable under the circumstances of this case, citing its decision in Furr v. State, 464 So.2d 693 (Fla. 2d DCA 1985).
In Linehan v. State, 476 So.2d 1262 (Fla. 1985), this Court determined that “second-degree murder is a necessarily included offense of first-degree premeditated and felony murder.” Id. at 1265 (emphasis added). We also directed that ”the Florida Standard Jury Instructions schedule of lesser includеd offenses should be amended to include second-degree murder as a necessarily lesser included offense of first-degree felony murdеr.” Id. (emphasis added).
At the time of the Linehan decision, the schedule of necessarily lesser included offenses for first-degree premeditated murder included: (1) second-degree murder and (2) manslaughter; for first-degree felony murder, the schedule identified only manslaughter as a necessarily lesser included offense. This Court, in Linehan, made a policy determination that the same category one necessarily lesser included degrees of homicide of second-degree murder and manslaughter that were applicable for first-degree premeditated murder should also be applicable for first-degree felony murder. We adhere to that decision and again direct that the Florida Standard Jury Instructions schedule of lesser included offenses bе so amended. In doing so, we are mindful that the Florida Standard Jury Instructions schedule of lesser included offenses was modified in 1987 to eliminate manslaughtеr as a category one necessarily lesser included offense of first-degree felony murder.
Accordingly, we quash the decision of the district court in the instant case and remand with directions that the cause be returned to the trial court for a new trial.
It is so ordered.
McDONALD, C.J., and EHRLICH, BARKETT and KOGAN, JJ., concur.
SHAW and GRIMES, JJ., dissent with an opinion.
SHAW, Justice, dissenting.
I dissent for the reasons set forth in my dissents to Wilcott v. State, 509 So.2d 261, 263 (Fla. 1987); State v. Wimberly, 498 So.2d 929, 932 (Fla. 1986); and Linehan v. State, 476 So.2d 1262 (Fla. 1985). The offenses of first-degree felony murder and second-degree depraved mind murder each contain unique statutory elements and the latter offense is not a lesser included offense of the former.
One may call something a necessarily lesser included offense when it isn‘t, much as one may call a horse a cow. However, such a description will not make it so, any more than it will endow the horse with the ability to provide milk.
A necessarily lesser included offense is an essential aspect of the greater offense. It is legally impossible to prove the greater offense without at the same time proving the lesser offense. State v. Baker, 456 So.2d 419 (Fla. 1984); Brown v. State, 206 So.2d 377 (Fla. 1968). A lesser offense cannot be a necessarily lesser included offense if it contains an element not present in the greater offense. Rotenberry v. State, 468 So.2d 971 (Fla. 1985).
A first-degree felony murder occurs as a result of an unlawful killing of a human being when committed by a person engaged in the perpetration of or in the attempt to perpetrate a specified felony.
It is true that in Linehan v. State, 476 So.2d 1262 (Fla. 1985), the Suprеme Court said that second-degree murder is a necessarily included offense of felony murder. However, the instruction on second-degreе (depraved mind) murder was required in Linehan only because it was supported by the evidence and, therefore, mandated by
By its holding in the instant case, the majority has now determined that an instruction on second-degree murder must be given as a necessarily lesser included offense of first-degree felony murder regardless of whether there is evidence to convict of second-degree murder. This is contrary to the specific requirement of
I respectfully dissent.