SHAWN EDWARD PHILLIPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that an improper flight instruction was not harmless error, requiring reversal of the conviction.
Appellant was convicted of robbery and appealed, raising issues of improper joinder, insufficient evidence of intent, and an erroneous flight instruct…
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PER CURIAM.
The appellant appeals from his conviction for robbery, asserting that (1) there was an improper joinder of offenses and defendants; (2) the evidence presented by the appellee was insufficient to prove that the appellant intended to commit robbery; and (3) the trial court erred in giving a flight instruction. We conclude that the improper joinder issue was not preserved. While the evidence of the appellant’s intent was far from overwhelming, we conclude that it was sufficient for submission of the issue to the jury. The trial court erred, however, in giving a flight instruction. See Fenelon v. State, 594 So. 2d 292 (Fla.1992).
Although Fenelon had not been decided when this case was tried, its holding must be applied to this case because the flight issue was preserved at trial and Fen-elon was decided during the time that the appellant’s conviction was pending direct appellate review. See Smith v. State, 598 So. 2d 1063 (Fla.1992); Kelvin v. State, 610 So. 2d 1359 (Fla. 1st DCA 1992); Keys v. State, 606 So. 2d 669 (Fla. 1st DCA 1992).
Upon a review of the record in this case, we are unable to conclude that the improper flight instruction was harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Accordingly, the appellant’s conviction is reversed and this cause is remanded for a new trial.
MINER and ALLEN, JJ., concur. BOOTH, J., concurs in part and dissents in part.
BOOTH, Judge,
concurring in part and dissenting in part.
I agree with the majority on all points except the critical finding that the giving of the flight instruction was harmful error. Appellant assisted in the robbery of the cab driver: He sat in the front seat of the cab next to the victim while his codefendant sat in the back with a knife on the victim. Appellant also reached under the front seat and opened and examined the contents of the victim’s bag. There was no evidence that appellant’s participation was due to his fear of the other robbers. To the contrary, the State’s two witnesses testified that appellant did not appear to be acting under duress. The “duress” argument is speculative at best and was rejected by the jury. The weight of the State’s evidence was sufficient to overcome the error in giving the flight instruction, under the test announced in State v. Diguilio, 491 So. 2d 1129 (Fla.1986); compare Crocker v. State, 616 So. 2d 1180 (Fla. 1st DCA 1993).
I would affirm the judgment of conviction below.
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Citator
Cited By
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Gray v. State, 640 So. 2d 186 (Fla. 1st DCA 1994)…in every case pending on direct review or not yet final); Lewis v. State, 623 So. 2d 1205 (Fla. 4th DCA 1993) (Fenelon applies retroactively to “pipeline” cases pending on direct review or not final at the time of that decision); Phillips v. State, 621 So. 2d 566 (Fla. 1st DCA 1993), rev. granted, 634 So. 2d 627 (Fla.1994); Dupree v. State, 615 So. 2d 713 (Fla. 1st DCA 1993), rev. denied, 623 So. 2d 495 (Fla.1993); Riles v. State, 613 So. 2d 479 (Fla. 1st DCA 1992); Keys v. State, 606 So. 2d 669 (Fla. 1st 19…
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MacK v. Singletary, 142 F. Supp. 2d 1369 (S.D. Fla. 2001)…ng the pendency of his direct appeal, an argument concerning the flight instruction would have, if presented to the appellate court, entitled him to a reversal of his conviction. In particular, Petitioner cites to Phillips v. State, *1385 621 So.2d 566 (Fla. 1st DCA 1993) (remanding defendant’s conviction for a new trial, finding that Fenelon should be applied because it was made during the pen-dency of defendant’s direct appellate review) and Kelvin v. State, 610 So.2d 1359 (Fla. 1st…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- King Anthony Green v. State, 594 So. 2d 292 (Fla. 1992)
- Keys v. State, 606 So. 2d 669 (Fla. 1st DCA 1992)
- Kelvin v. State, 610 So. 2d 1359 (Fla. 1st DCA 1992)
- Crocker v. State, 616 So. 2d 1180 (Fla. 1st DCA 1993)