JERRY L. DUCKWORTH,

v.

THE STATE OF FLORIDA,

MILLER, J.

Petitioner, Jerry Duckworth, the defendant in the criminal prosecution below, seeks the issuance of a writ of habeas corpus, contending fundamental error in his jury instructions necessitates a new trial. He alleges that, at his trial, the jury was left uninstructed on a crucial element of the lesser-included offense for which he was convicted.¹ Finding the asserted basis for relief is not cognizable, we deny the petition. Duckworth was charged by information with one count of robbery with a firearm, in violation of section 812.13(2)(a), Florida Statutes, and one count of aggravated assault, in violation of section 784.021(1), Florida Statutes. The case proceeded to trial, and, following the charge conference, both the prosecution and defense stipulated to a proposed set of jury instructions. Although the written instructions included the statutory elements of robbery and guidance on applying firearm and weapon enhancements, the word “weapon” remained undefined.

Nonetheless, the jury was orally instructed on the meaning of “weapon,” and, thereafter, returned a verdict of guilt for robbery with a weapon, a category one necessarily lesser-included offense of armed robbery with a firearm. Duckworth

was subsequently sentenced to life imprisonment as a habitual violent felony offender.² For the better part of a decade, Duckworth has sought to undo his conviction and sentence, without success.³ State, 39 So. 3d 1264 (Fla. 2010); Ducksworth v. State, No. 3D19-1364 (Fla. 3d DCA July 15, 2019); Ducksworth v. State, 203 So. 3d 167 (Fla. 3d DCA 2016); Ducksworth v. State, 185 So. 3d 1247 (Fla. 3d DCA 2016); Ducksworth v. State, 93 So. 3d 1037 (Fla. 3d DCA 2011); Ducksworth v. State, 26 So. 3d 74 (Fla. 3d DCA 2010); Ducksworth v. State, 8 So. 3d 1145 (Fla. 3d DCA 2009); Ducksworth v. State, 998 So. 2d 614 (Fla. 3d DCA 2008); Ducksworth v. State, 903 So. 2d 297 (Fla. 3d DCA 2005); Ducksworth v. State, 834 So. 2d 951 (Fla. 3d DCA 2003).

Indeed, the very claim of error asserted within this petition was previously raised and rejected by our court. See Garcia v. State, 69 So. 3d 1003, 1004 (Fla. 3d DCA 2011) (“[A] defendant is not entitled to successive review of a specific issue that already has been decided on the merits.”) (citations omitted); Bueno v. Bueno de Khawly, 677 So. 2d 3, 4 (Fla. 3d DCA 1996) (The “doctrine [of law of the case states] that those points of law adjudicated in a prior appeal are binding in order to promote stability of judicial decisions and to avoid piecemeal litigation.”) (citation omitted); see also Baker v. State, 878 So. 2d 1236, 1245 (Fla. 2004) (“The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850.”) (citation omitted); Calloway v. State, 699 So. 2d 849, 849 (Fla. 3d DCA 1997) (“A petition for habeas corpus cannot be used to circumvent the two-year period for filing motions for postconviction relief.”) (citations omitted).

Nonetheless, “[u]nder Florida law, appellate courts have ‘the power to reconsider and correct erroneous rulings [made in earlier appeals] in exceptional circumstances and where reliance on the previous decision would result in manifest injustice.” State v. Akins, 69 So. 3d 261, 268 (Fla. 2011) (second alteration in original) (quoting Muehleman v. State,³ So. 3d 1149, 1165 (Fla. 2009)).

As Duckworth contends those circumstances exist here, we examine existing law in light of the entirety of the record with a view of determining the propriety of habeas relief. See Marshall v. State, 240 So. 3d 111, 118 n.8 (Fla. 3d DCA 2018) (“In so holding, the Akins court expressly rejected the State’s contention that the law of the case doctrine barred the district court from granting a successive claim.”) (citation omitted). “The writ of habeas corpus is a common-law writ of ancient origin designed as a speedy method of affording a judicial inquiry into the cause of any alleged

unlawful custody of an individual or any alleged unlawful, actual deprivation of personal liberty.” Porter v. Porter, 60 Fla. 407, 409-10, 53 So. 546, 547 (1910). It is “a writ of right,” Ex parte Amos, 93 Fla. 5, 11, 112 So. 289, 291 (1927), “enshrined in [the] Constitution [of Florida] to be used as a means to correct manifest injustices and its availability for use when all other remedies have been exhausted has served our society well over many centuries.” Baker, 878 So. 2d at 1246 (Anstead, C.J., specially concurring).

Accordingly, where improper jury instructions result in a denial of due process, habeas proceedings may afford an avenue for relief. See State v. Montgomery, 39 So. 3d 252, 258 (Fla. 2010), receded from by Knight v. State, 286 So. 3d 147 (Fla. 2019) (“[F]undamental error occurred . . . where [the defendant] was indicted and tried for first-degree murder and ultimately convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter.”); see also Walton v. State, 208 So. 3d 60, 65 (Fla. 2016) (“[T]he failure to correctly instruct the jury on a necessarily lesser included offense constitutes fundamental error.”) (citations omitted).

Here, Duckworth abandoned any preserved challenge to the adequacy of the jury instructions by failing to contemporaneously object.

Accordingly, he bears “the burden of proving that the instruction given affected the trial in such a way as to render the trial fundamentally unfair.” McCrae v. Wainwright, 439 So. 2d 868, 870-

71 (Fla. 1983) (citing United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982)).

Although the meaning of weapon appears to have been inadvertently excluded from the proper written jury instructions, the jury was informed of a definition by way of the oral instructions. See McCrae, 439 So. 2d at 871 (“[A]lthough a detailed instruction on the elements of rape was not included in the jury instructions proper, the essential elements of the offense of rape for felony murder purposes were set before the jury by means of the reading of count two of the indictment.”) (citation omitted).

Further, as it was undisputed that the perpetrator of the charged crimes was indeed armed, under the circumstances presented, we cannot conclude that the proceedings below were so defective as to be rendered fundamentally unfair. See Daniels v. State, 121 So. 3d 409, 418 (Fla. 2013) (“[A] defective instruction in a criminal case can only constitute fundamental error if the error pertains to a material element that is disputed at trial.”).

Consequently, habeas relief is unwarranted. Petition denied.

HENDON, J., concurs.

Jerry L. Duckworth v. The State of Florida Case No. 3D20-0272

LINDSEY, J. (specially concurring).

I concur in denying the petition for habeas corpus solely on the basis that the errors alleged therein were previously raised and rejected by our Court. See Ducksworth v. State, No. 3D19-1364, 2019 WL 4413294 (Fla. 3d DCA July 15, 2019); see also King v. State, 808 So. 2d 1237, 1246 (Fla. 2002) (“Successive habeas corpus petitions seeking the same relief are not permitted nor can new claims be raised in a second petition when the circumstances upon which they are based were known or should have been known at the time the prior petition was filed.” (quoting Johnson v. Singletary, 647 So. 2d 106, 109 (Fla. 1994))); Allen v. State, 917 So. 2d 906, 907 (Fla. 3d DCA 2005).