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GILLION v. STATE

No. 81-257.

411 So.2d 341 (1982)

Sammie R. GILLION, Jr., Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fourth District.

March 24, 1982.

Attorney(s) appearing for the Case

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.

OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

Appellant, indicted for first degree murder, was tried by a jury and convicted of third degree murder. We affirm the judgment on the holding that (1) the hearsay testimony to which appellant objected was admissible as an excited utterance under Section 90.803(2), Florida Statutes (1981), and (2) the instruction on third degree murder, to which appellant made no objection, was mandated by Brown v. State,

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