REGINALD ALEXANDER GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal reconsidered its reversal of Green's conviction after the Florida Supreme Court remanded the case in light of Garzon v. State. The court affirmed Green's conviction, holding that while the use of 'and/or' language in jury instructions was error, it did not constitute fundamental error absent contemporaneous objection.
While the use of 'and/or' language in jury instructions was error, it did not constitute fundamental error absent contemporaneous objection. Considering the 'and/or' language in light of the other jury instructions, attorneys' arguments, and circumstances at trial, the conviction must be affirmed.
[1] The unobjected-to use of the conjunctive phrase "and/or" between the names of defendants in criminal jury instructions does not constitute fundamental error when consider…
[2] While the use of "and/or" in jury instructions may constitute error, such error is insufficient to overturn a conviction absent a contemporaneous objection.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the use of 'and/or' in this case did not result in fundamental [error]”
The court's holding that while the 'and/or' language was error, it did not constitute fundamental error warranting reversal.
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Join FLexlaw to unlock all legal intelligenceGreen stood trial with a co-defendant for uttering a forgery. Both defendants were present at a bank when an attempt was made to cash a counterfeit ch…
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PER CURIAM.
In our original decision in this case, Green v. State, 2007 WL 1319259, (Fla. 1st DCA 2007), we reversed appellant’s conviction, although we acknowledged conflict with the Fourth District’s decision in Gar-zón v. State, 939 So. 2d 278 (Fla. 4th DCA 2006), then pending review and subsequently approved by our supreme court. See Garzon v. State, 980 So. 2d 1038 (Fla.2008).
After deciding Garzon, 980 So. 2d at 1038, the supreme court accepted jurisdiction in the present case, summarily quashed our original decision, and remanded for reconsideration in light of its decision in Garzon. See State v. Given, 992 So. 2d 223 (Fla.2008).
We now reconsider our decision in accordance with the supreme court’s mandate, mindful that the Garzon decision disapproved the decisions in Davis v. State, 922 So. 2d 279 (Fla. 1st DCA 2006), and Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005), on which we originally relied. See 980 So. 2d at 1045.
The present case, like Garzon, concerns “the unobjected-to use of the ‘and/or’ conjunctive phrase between the names of defendants in criminal jury instructions.” 980 So. 2d at 1039. Here, as in Garzon, a standard charge on principals, and a “multiple defendants instruction” accompanied the instructions on the elements of the substantive offense, here uttering a forgery. Id. at 1040. Here, too, as in Garzon, “each jury verdict form was individualized to each defendant and did not use the ‘and/or’ language.” Id.
Appellant stood trial with a single co-defendant, who was acquitted. In arguing to the jury, the prosecutor acknowledged the state’s burden to prove each defendant guilty “separately.” Both were present at the bank when the effort to cash a counterfeit check was made. The state sought to prove that the co-defendant was not merely “a pawn in [appellant’s] scheme to try to cash this cheek,” while the co-defendant defended on the theory that the co-defendant’s role had been that of an unwitting “fall guy.” Co-defendant and state alike argued for appellant’s culpability while appellant defended on the theory that there was a failure to prove he knew the check was a forgery.
“In sum, considering the use of ‘and/or’ in light of the other jury instructions, the attorneys’ arguments, and the circumstances at trial,” Garzon, 980 So. 2d at 1042, we conclude, as the supreme court did in Garzon, “that the use of ‘and/or’ in this case did not result in fundamental error,” id. at 1043, although, again like the supreme court in Garzon, “we do conclude that the use of the ‘and/or’ instructions was error.” Id. at 1045. Absent contemporaneous objection, however, mere error is no basis for overturning appellant’s conviction.
Accordingly, upon reconsideration, the judgment is affirmed.
ALLEN, WEBSTER, and BENTON, JJ., concur.
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Smith v. State, 76 So. 3d 1056 (Fla. 4th DCA 2011)…. State, 22 So. 3d 753, 759 (Fla. 4th DCA 2009); Brown v. State, 35 So. 3d 148, 156-58 (Fla. 3d DCA 2010); Nicholson v. State, 33 So. 3d 107, 111-12 (Fla. 1st DCA 2010); Barrientos v. State, 1 So. 3d 1209, 1219-20 (Fla. 2d DCA 2009); Green v. State, 996 So. 2d 911, 912-13 (Fla. 1st DCA 2008). Much of the same analysis applies to this case. The court gave both the principals and multiple defendants’ instruction, and Smith’s attorney strongly argued to the jury both instructions and why Smith could not be conv…
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Zairon Jarquis Fussell v. State, 154 So. 3d 1233 (Fla. 1st DCA 2015)…ate, 8 So. 3d 483, 485 (Fla. 1st DCA 2009) (concluding use of the “and/or” phrase in the instructions constituted fundamental error because “the jury could have found Mr. Moton guilty on the basis of Mr. Stallworth’s conduct alone”); Green v. State, 996 So. 2d 911, 912-13 (Fla. 1st DCA 2008) (concluding that the use of “and/or” between the names of defendants in criminal jury instructions was error). In the present case, the movie patrons who were allegedly shot at — not multiple defendants — were linked wit…
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Moton v. State, 8 So. 3d 483 (Fla. 1st DCA 2009)…te, 996 So. 2d 936, 939 (Fla. 2d DCA 2008). Since no contemporaneous objection was lodged, however, we must decide whether the error was fundamental. See Hunter v. State, 8 So. 3d 1052, 1062-63, 2008 WL 4352655 (Fla. Sept. 25, 2008); Green v. State, 996 So. 2d 911, 912-13 (Fla. 1st DCA 2008) (on remand). Answering this question in the negative in Garzón, the supreme court stated the facts there: [T]wo individuals forced their way through the Smiths’ front door as their housekeeper was coming in that same doo…
Authorities Cited
- Zamir Garzon v. State, 980 So. 2d 1038 (Fla. 2008)
- Zamir Garzon and Ray C. Balthazar v. State, 939 So. 2d 278 (Fla. 4th DCA 2006)
- Jacquelyn Davis v. State, 922 So. 2d 279 (Fla. 1st DCA 2006)
- Green v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)
- Raymundo Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)
- State v. Green, 992 So. 2d 223 (Fla. 2008)