DUNCAN v. STATE

No. 96-495.

703 So.2d 1069 (1997)

Marcus DUNCAN, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fifth District.

Rehearing Denied January 14, 1998.


Attorney(s) appearing for the Case

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Hall, Assistant Attorney General, Daytona Beach, for Appellee.


PETERSON, Judge.

Marcus Duncan appeals his conviction for second degree murder alleging he is entitled to a new trial because the trial court's manslaughter instruction to the jury was fundamentally flawed.

We agree with Duncan that the trial court erred by merging the instructions for voluntary and involuntary manslaughter. The instruction for voluntary manslaughter should not have been given because Duncan was only charged with second degree murder. It is...

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