HERIBERTO DELVALLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1995-04-13
No. 94-514
W. SHARP and GOSHORN, JJ., concur.
653 So. 2d 1078 Florida District Court of Appeal, Fifth District (1995) Positive Treatment
Cited by 13 cases

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Holding

The court held that the defendant invited the error regarding the verdict form and that any error was harmless given the overwhelming evidence.


Headnotes

[1] A defendant waives the right to challenge verdict forms if defense counsel expresses satisfaction with the forms prior to their submission to the jury.

[2] A typographical error in a verdict form that omits a lesser included offense may be considered harmless error if the evidence overwhelmingly supports a conviction on the…

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Facts & Procedural History

The defendant was convicted of attempted first-degree murder with a firearm. The issue on appeal concerned an incorrect verdict form submitted to the …

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Opinion of the Court
COBB, Judge.

COBB, Judge.

Delvalle was convicted as charged of two counts of attempted first degree murder with a firearm as the result of the shooting and wounding of two men in the front yard of a house. A resident of the house was Fernando Ramirez, who had an affair with Delvalle’s wife and who had been threatened by Del-valle. Delvalle was looking for “Fernando” at the time he shot the other two men. The issue at trial was the identity of the shooter. The evidence against Delvalle was overwhelming.

The troublesome issue on appeal concerns an incorrect verdict form submitted to the jury for each count. That form provided that the next lesser offense to the charged offense was “first degree murder without a firearm” when it was intended to be “attempted first degree murder without a firearm.”1

Delvalle now contends that he is entitled to a new trial because the typographical omission, which escaped notice by trial counsel and the trial judge prior to the jury verdict, deprived him of the possibility of a jury pardon in the form of a conviction of the “next immediate lesser included offense, one step removed from the offense charged.” The lesser conviction would also have removed the three year mandatory minimum sentence. He contends that this constitutes per se reversible error per State v. Abreau, 363 So. 2d 1063 (Fla.1978).

It should be noted that the defense at trial concerned identity. It was not disputed that a firearm was utilized in the offenses. We also observe that some seven lesser included offenses, commencing with attempted second degree murder with a firearm, were included on each verdict form.

In Abreau it was held to be reversible error per se for a trial judge to fail to instruct on the next immediate lesser included offense (one step removed). In the instant case, the trial judge properly instructed on the next immediate lesser included offense; the problem was the typographical omission in respect to that offense in the verdict forms. In this case, as in Capehart v. State, 583 So. 2d 1009 (Fla.1991), cert. denied, 502 U.S. 1065, 112 S.Ct. 955, 117 L.Ed.2d 122 (1992), the defendant failed to preserve any objection to the verdict forms by timely objection at trial. In fact, defense counsel specifically expressed satisfaction with the verdict forms on two separate occasions prior to their submission to the jury. The error, therefore, was an invited one. See Perry v. State, 362 So. 2d 460 (Fla. 1st DCA 1978). Given the evidence adduced at trial, the error also was harmless, since it is inconceivable that any rational jury could have returned a verdict finding that there was no firearm involved in the commission of the charged offenses. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).

At a more fundamental level, however, we note that the trial court and trial counsel seem to have misapprehended the fact that the next lesser included offense of the crime of attempted first degree murder (with or without a firearm) is attempted second degree murder — -and that option was provided to and rejected by the jury in this case. Whether or not the aggravating factor of a firearm was present is an issue separate and apart from that relating to the degrees of attempted murder, and it should have been separately submitted to the jury as a specific question in a special verdict form. State v. Tripp, 642 So. 2d 728 (Fla.1994); State v. Overfelt, 457 So. 2d 1385, 1387 (Fla.1984). The form provided to the jury should only have provided for five lesser included offenses: attempted second degree murder, attempted third degree murder, attempted manslaughter, aggravated battery and battery.

AFFIRMED.

W. SHARP and GOSHORN, JJ., concur. . The verdict forms provided to the jury read as follows:

VERDICT

_X_ WE, THE JURY, find the Defendant guilty of Attempted First Degree Murder with a Firearm, as charged in the Information.

_ WE, THE JURY, find the Defendant guilty of the lesser included offense of First Degree Murder Without a Firearm.

_ WE, THE JURY, find the Defendant guilty of the lesser included offense of Attempted Second Degree Murder with a Firearm.

_ WE, THE JURY, find the Defendant guilty of the lesser included offense of Attempted Second Degree Murder Without a Firearm.

_ WE, THE JURY, find the Defendant guilty of the lesser included offense of Attempted Manslaughter With a Firearm.

_ WE, THE JURY, find the Defendant guilty of the lesser included offense of Attempted Manslaughter Without a Firearm.

-_ WE, THE JURY, find the Defendant guilty of the lesser included offense of Aggravated Battery with a Firearm.

_ WE, THE JURY, find the Defendant guilty of the lesser included offense of Aggravated Battery Without a Firearm.

_ WE, THE JURY, find the Defendant guilty of the lesser included offense of Battery.

_ WE, THE JURY, find the Defendant not guilty.


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Citator

Cited By

  • Galindez v. State, 955 So. 2d 517 (Fla. 2007)
    …have the jury make the victim injury finding as to Count I contributed to the conviction or sentence— in other words, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found penetration. Cf. Delvalle v. State, 653 So. 2d 1078, 1079 (Fla. 5th DCA 1995) (citing DiGuilio and holding that where the defendant alleged that error regarding a [*524] lesser included offense deprived him of a jury pardon, “[gjiven the evidence adduced at trial, the error also was harmless, since i…
  • Riley v. State, 25 So. 3d 1 (Fla. 1st DCA 2008)
    …rning victim injury points for penetration was harmless where no reasonable jury would have returned a verdict finding there was no penetration of the victims. Id. at 524. In Galindez, 955 So. 2d at 523, the supreme court cited to Delvalle v. State, 653 So. 2d 1078, 1079 (Fla. 5th DCA 1995), where the Fifth District held that an error regarding a lesser included offense which deprived the defendant of a jury pardon could be harmless because, given the evidence at trial, it was inconceivable that any rational […
  • Morris v. State, 658 So. 2d 155 (Fla. 1st DCA 1995)
    …to necessarily lesser-included offenses is not fundamental error. Jones v. State, 484 So. 2d 577 (Fla.1986). To preserve such error for appeal, the defendant must make a timely objection to the instructions as given. Id.; see also Delvalle v. State, 653 So. 2d 1078 (Fla. 5th DCA 1995). In this case, Morris failed to object to the verdict form despite being given two clear opportunities to do so.2 Even if the error in the verdict form had been preserved, it was invited. See Delvalle v. State, 653 So. 2d 1078 (…
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