Opinion
No. 94-01139.
March 24, 1995.
Appeal from the Circuit Court, Sarasota County, Robert B. Bennett, Jr., J.
Douglas A. Wallace, Bradenton, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Angela D. McCravy, Asst. Atty. Gen., Tampa, for appellee.
Appellant challenges his judgment and sentence for attempted first degree murder with a firearm. We find merit only in the issue concerning the error in the written judgment entered by the trial court.
Appellant was charged with attempted first degree murder with a firearm. Appellant was found guilty of attempted second degree murder with a firearm. The state concedes that the written judgment erroneously adjudicated appellant guilty of the offense as charged. Thus, this case must be affirmed and remanded so that the sentence conforms to the trial court's oral pronouncement.
Secondly, appellant contends that the trial court should have instructed the jury on manslaughter pursuant to section 782.11, Florida Statutes (1991), since he alleges he shot the victim only after the victim pushed him. We disagree. In State v. Carrizales, 356 So.2d 274 (Fla. 1978), the supreme court stated that a person cannot justify killing another in self-defense unless he has used all reasonable means to avoid the danger and is not entitled to instruction based on section 782.11.
We affirm appellant's conviction for attempted second degree murder with a firearm and remand for the trial court to correct the written judgment to so reflect.
THREADGILL and QUINCE, JJ., concur.