Are Jury Instructions on Second-Degree Murder Necessary If Defendant Is Charged With First-Degree Murder ?

In Linehan v. State, 476 So. 2d 1262 (Fla. 1985), the court addressed a certified question of "whether a jury instruction on second degree (depraved mind) murder is necessary, if supported by the evidence, when defendant is charged with first degree (felony) murder." Linehan, 476 So. 2d at 1263. This Court held that second-degree murder was a necessarily lesser-included offense of first-degree premeditated and felony murder. Id. at 1263-64. The Supreme Court of Florida further suggested that the Florida Standard Jury Instructions schedule of lesser included offenses should be amended to include second-degree murder as a necessarily lesser-included offense of first-degree felony murder. Id. at 1265. The Court repeated this holding in Scurry v. State, 521 So. 2d 1077, 1078 (Fla. 1988), and again directed that the Standard Jury Instructions be amended. The recommended change was subsequently incorporated into the schedule of lesser-included offenses. See Standard Jury Instructions--Criminal Cases No. 92-1, 603 So. 2d 1175 (Fla. 1992). In a dissent to Linehan, Justice Shaw expressed disagreement with the majority's holding. Justice Shaw concluded that second-degree, depraved mind, murder is not a lesser-included offense of first-degree felony murder because it is the statutory elements that determine whether an offense is a lesser-included offense of another. See Linehan, 476 So. 2d at 1266 (Shaw, J., dissenting). Justice Shaw reasoned that offenses are separate and not lesser-included if each offense contains an element that the other does not have. See id. Justice Shaw further noted that it is the Legislature, through its definition of statutory elements of offenses, that determines whether offenses are lesser included or separate. Therefore, standard jury instructions and the rules of criminal procedure must give way to that legislative decision. See id. (citing 775.021(4), Florida Statutes (1983)). Justice Shaw found that the majority of this Court and the district court below had departed from Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), in looking to the evidence rather than to the statutory elements of first-degree felony murder and second-degree depraved mind murder. See Linehan, 476 So. 2d at 1266 (Shaw, J., dissenting).