Gillion v. State

OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

Appellant, indicted for first degree murder, was tried by a jury and convicted of third degree murder. We affirm the judgment on the holding that (1) the hearsay testimony to which appellant objected was admissible as an excited utterance under Section 90.803(2), Florida Statutes (1981), and (2) the instruction on third degree murder, to which appellant made no objection, was mandated by Brown v. State, 206 So.2d 377 (Fla.1968) and was not error. See Thomas v. State, 406 So.2d 538 (Fla. 4th DCA 1981).

At the time of sentencing, appellant’s…