Jury Instructions on the Next Lower Crime

In Pena v. State, 901 So. 2d 781, 788 (Fla. 2005) the Supreme Court of Florida concluded that the failure to instruct on justifiable or excusable homicide was not fundamental error where manslaughter charge was three steps removed from the offense for which the defendant was convicted and the facts of the case did "not support any jury argument relying upon the excusable or justifiable homicide instruction. When the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis. Pena, 901 So. 2d at 787. The court explained that the significance of the two-steps-removed requirement is more than merely a matter of number or degree. A jury must be given a fair opportunity to exercise its inherent "pardon" power by returning a verdict of guilty as to the next lower crime. If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense. Id. at 787.