McCRAY v. STATE (2003)

District Court of Appeal of Florida,First District.

Terrance McCRAY, Appellant, v. STATE of Florida, Appellee.

No. 1D01-3917.

Decided: June 11, 2003

Nancy Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant. Charlie Crist, Attorney General, and Sherri T. Rollinson, Assistant Attorney General, Tallahassee, for Appellee.

The appellant challenges a manslaughter conviction, arguing that the court erred in the manslaughter instruction by failing to explain that this offense does not encompass justifiable or excusable homicide. As indicated in Rojas v. State, 552 So.2d 914 (Fla.1989), manslaughter is a residual offense which requires such an explanation for a proper definition of the crime. See also, e.g., State v. Lucas, 645 So.2d 425 (Fla.1994). Furthermore, the failure to refer to justifiable and excusable homicide in connection with the manslaughter instruction is fundamental error. E.g. Lucas; Rojas. The appealed order is therefore reversed and the case is remanded.

PER CURIAM.

ALLEN, C.J., WEBSTER and BROWNING, JJ., concur.

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