RULE 3.510.I don't have it at my fingertips, but recall reading a Florida case that held the jury MUST be given these option, that a judge does not have the discretion to limit the instructions sent to the jury. The power of the judge is limited to discerning which charges are not supported by the evidence.DETERMINATION OF ATTEMPTS AND LESSER INCLUDED OFFENSES
On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense; or
(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.
Committee Notes
1968 Adoption. Same as section 919.16, Florida Statutes. The standing committee on Florida court rules raised the question as to whether this rule is procedural or substantive and directed the subcommittee to call this fact to the attention of the supreme court.
The only "automatic" lesser included charges are those in the "Category One" column. Category One = an offense that as a matter of law is a necessarily included offense or a lesser included offense.
By my understanding, a manslaughter conviction could be appropriate in a self-defense case where someone was attacked unlawfully, but not with deadly force, and reacted in a manner which was not intended to be deadly force but, because of negligence, nonetheless killed the attacker. As a hypothetical, if GZ were to claim that he tried to fire a shot at the ground to scare off TM, but TM deflected his hand, and if the jury believed such a claim but did not believe deadly force was justified, a manslaughter charge might be appropriate.
In the extant situation, however, I think both sides have essentially stipulated that Zimmerman willfully shot at TM. As such, I do not think a judge would spontaneously entertain any notion to the contrary.
Thanks Cboldt
P-M, please see 1299. What do you think?