Florida District Courts of Appeal, 2001

Williams v. State

Florida District Courts of Appeal · Decided November 16, 2001 · Browning, Nortwick, Wolf

799 So. 2d 444; 2001 Fla. App. LEXIS 16261; 2001 WL 1448565 (Southern Reporter, Second Series)

Opinion of the Court

WOLF, J.

Appellant raises three issues in this appeal, only one of which requires reversal. Because we find the facts in this case indistinguishable from those in Ellison v. State, 547 So.2d 1003 (Fla. 1st DCA 1989), aff'd in pertinent part, rev’d on other grounds, State v. Ellison, 561 So.2d 576 (Fla. 1990), we reverse appellant’s Conviction for second degree murder and remand for entry of a judgment of conviction on the necessarily lesser included offense of manslaughter, which was proven at trial.1 We affirm appellant’s convictions and sentences in all other respects.

VAN NORTWICK, J., concurs; BROWNING, J., concurs in part and dissents in part with written opinion.

. We would note that we do not condone the prosecutor’s use of a firearm as a demonstrative tool during closing argument in a case where no firearm was involved, but conclude that any harmful effect this conduct may have had on the jury’s verdict is remedied by our decision to reduce the degree of appellant's homicide charge.

Concurring in Part

BROWNING, J.,

concurring in part and dissenting in part.

I concur with the majority opinion except footnote 1. I reason the prosecutor’s use of a firearm as a demonstrative tool during closing argument was zealous advocacy, and such advocacy does not constitute error or improper tactics in any manner.

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