DANA JAMMER WEYRICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dana Weyrick appeals her DWI manslaughter conviction and community control sentence, arguing the trial court erred by failing to instruct the jury on vehicular homicide as a necessarily lesser included offense without her personal waiver. The court affirmed, holding that Florida law does not require a defendant's personal waiver of lesser included offense instructions in noncapital cases; attorney waiver is sufficient.
In noncapital cases, no personal waiver by the defendant is required to guarantee fundamental fairness; a client is bound by counsel's acts regarding waiver of jury instructions on necessarily lesser included offenses. Because no request for vehicular homicide instruction was made and no objection was raised, the issue was not preserved for appeal.
[1] A client is bound by the acts of their attorney regarding waiver of jury instructions on necessarily lesser included offenses in noncapital cases.
[2] In noncapital cases, a personal waiver by the defendant is not required to guarantee fundamental fairness concerning the waiver of jury instructions on necessarily lesser…
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“in order for a defendant in a capital case to waive an instruction on necessarily lesser included offenses, due process requires that he do so knowingly, intelligently and personally on the record”
Establishes the constitutional requirement in capital cases that was the foundation for appellant's argument
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWeyrick was convicted of DWI manslaughter under Florida Statutes section 860.01. During trial, at the jury instruction conference, the defense counsel…
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DOWNEY, Judge.
This is a timely appeal from a judgment of conviction and placement of appellant on community control for a period of two years for the offense of DWI manslaughter, in violation of section 860.01, Florida Statutes (1981).
During the course of the trial, at a jury instruction conference, the court provided counsel with an opportunity to present any requested instructions. Counsel for the defense specifically requested that none be given.
The only point on appeal we deem worthy of discussion is appellant’s contention that, absent a knowing and intelligent express waiver on the record by appellant, herself, the trial court was required to instruct the jury on the offense of vehicular homicide as a necessarily lesser included offense. The argument in favor of such requirement stems from the holding of the Florida Supreme Court in Harris v. State, 438 So. 2d 787 (Fla.1983), cert. denied 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984), wherein the court held that, in order for a defendant in a capital case to waive an instruction on necessarily lesser included offenses, due process requires that he do so knowingly, intelligently and personally on the record. The question was left unanswered by the supreme court as to whether this same constitutional right was enjoyed by those charged with noncapital offenses, as in the instant case.
The supreme court has now resolved the matter with regard to those charged with noncapital offenses in Jones v. State, 484 So. 2d 577 (Fla.1986). Therein, the court held that no personal waiver is required in order to guarantee fundamental fairness in the noncapital context, and a client is bound by the acts of his attorney regarding waiver of jury instructions on necessarily lesser included offenses. In the instant, noncapital, case there was no request for an instruction on vehicular homicide and there was no objection to the failure to give such an instruction. Therefore, the issue of whether vehicular homicide was a necessarily lesser included offense that the trial court should have instructed the jury on was not preserved.
Accordingly, finding no demonstration of reversible error, we affirm the judgment of conviction and placement of appellant on community control appealed from.
HERSEY, C.J., and GLICKSTEIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rigoberto Montoya v. State, 489 So. 2d 794 (Fla. 3d DCA 1986)…cluded offense of third degree murder. The record reveals that Montoya failed to request an instruction on third degree murder; thus, Montoya waived his entitlement to such an instruction. Jones v. State, 484 So. 2d 577 (Fla.1986); Weyrick v. State, 485 So. 2d 901 (Fla. 4th DCA 1986). Third, Montoya argues that his sentence exceeds the recommended guidelines. We disagree. Montoya was convicted of attempted second degree murder with a firearm. Second degree murder is a first degree felony. § 782.04(2), Fla.S…
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LEE v. State, 526 So. 2d 777 (Fla. 2d DCA 1988)…. But defendant did not request such an instruction and did not object to the failure to give it. Where there is no request for an instruction on a lesser included offense, the issue has not been preserved for appellate review. See Weyrick v. State, 485 So. 2d 901 (Fla. 4th DCA 1986); Walker v. State, 473 So. 2d 694, 697-98 (Fla. 1st DCA 1985). The conviction for possession of cocaine is vacated, but the trafficking conviction is affirmed. SCHOONOVER, A.C.J., and HALL, J., concur.…
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Faustino Aguilera v. State, 526 So. 2d 217 (Fla. 3d DCA 1988)…fic agreement with the trial court’s determination not to [*218] instruct on an arguably necessarily lesser included offense in this non-capital case precludes raising the issue on appeal. Jones v. State, 484 So. 2d 577 (Fla.1986); Weyrick v. State, 485 So. 2d 901 (Fla. 4th DCA 1986); compare Harris v. State, 438 So. 2d 787 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (opposite rule in capital case). On that basis, the appellant’s only contention may not be considered. Affirmed.…
Authorities Cited
- Harris v. State, 438 So. 2d 787 (Fla. 1983)
- Jones v. State, 484 So. 2d 577 (Fla. 1986)
- Global Terminal & Container Servs., Inc. v. Colgate Palmolive Co., 466 U.S. 963 (U.S. 1984)
- Velde v. Nat'l Black Police Assn., Inc., 466 U.S. 963 (U.S. 1984)