ROBERT ABBARNO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Abbarno appeals his conviction for attempted second-degree murder and related charges, arguing the trial court committed fundamental error by failing to instruct the jury on justifiable or excusable homicide. The court affirmed, holding that while such an instruction is normally required, the exception applied because defense counsel affirmatively agreed to the incomplete instruction and conceded there was no basis to argue justifiable or excusable homicide.
The trial court did not commit fundamental error because the exception to the fundamental error rule applies when a defendant's defense counsel affirmatively agrees to or requests an incomplete instruction and concedes that justifiable or excusable homicide is not a basis for defense. An instruction on those concepts would have been meaningless where counsel explicitly stated neither applied.
[1] A trial court's failure to instruct the jury on an element of the offense of conviction constitutes fundamental error only if the defendant disputed that element at trial…
[2] A trial court's failure to issue an unrequested defense instruction is not fundamental error.
Previewing 2 of 6 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“a complete instruction on manslaughter requires an explanation of justifiable and excusable homicide. It is thus fundamental error not to give the complete instruction if the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second degree murder.”
Establishes the general rule that justifiable and excusable homicide instructions are required as fundamental error in manslaughter and related cases
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Join FLexlaw to unlock all legal intelligenceAbbarno assaulted his estranged girlfriend at her workplace, resulting in his conviction for attempted second-degree murder with a firearm and four ot…
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W. SHARP, Judge.
Abbarno appeals after a jury found him guilty of one count of attempted second degree murder with a firearm,1 and four other criminal charges growing out of his assault on his estranged girlfriend, in her work place. He argues the trial judge committed fundamental error by failing to instruct the jury on justifiable or excusable homicide. Miller v. State, 573 So. 2d 337 (Fla.1991); Rojas v. State, 552 So. 2d 914 (Fla.1989). We disagree and affirm.
In State v. Lucas, 645 So. 2d 425 (Fla.1994), the defendant was charged with second degree murder and his counsel requested an instruction on attempted manslaughter. In instructing the jury, the trial court failed to explain that Lucas could not be found guilty of attempted manslaughter if the evidence showed the attempted homicide was possibly justifiable or excusable. Defense counsel failed to object to the omission of the instruction and Lucas was found guilty of attempted manslaughter. The Florida Supreme Court held in Lucas that because manslaughter is a residual offense, it can only be defined by referring to what it is not. Thus a complete instruction on manslaughter requires an explanation of justifiable and excusable homicide. It is thus fundamental error not to give the complete instruction if the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second degree murder. However in Lucas, the court recognized an exception to the fundamental error rule in this context, where the defense “affirmatively agreed to or requested the incomplete instruction.” Armstrong v. State, 579 So. 2d 734 (Fla.1991). In this case, the exception is applicable. When asked about the proposed instruction, defense counsel in this case (Mr. Feliciani) stated he had no objection to the proposed instruction. More telling was the following colloquy:
The Court: There’s no self-defense justifiable, none of that has been ...
Mr. Hastings: You’re saying he just didn’t do it.
Mr. Feliciani: Right.
Since defense counsel agreed with the proposed instruction, and conceded that he had no basis to argue excusable or justifiable homicide, there is no fundamental error in failing to give the complete instruction. See Armstrong v. State, 579 So. 2d 734 (Fla.1991). Defense counsel affirmed that neither justifiable homicide nor excusable homicide was involved. Thus an instruction on those two concepts would have achieved nothing. Further it appears that by making this affirmative statement to the trial judge, the trial judge may have been dissuaded from giving the complete instruction.
AFFIRMED.
DAUKSCH and GRIFFIN, JJ., concur. . §§ 782.04(2); 775.087(1) and (2), and 777.04, Fla.Stat. (1993).
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Geraldo Roberts v. State, 694 So. 2d 825 (Fla. 2d DCA 1997)…ghter instruction, even though defendant failed to object). The only exception to this rule is if defense counsel affirmatively agrees to the omission or alteration of the instruction. Armstrong v. State, 579 So. 2d 734 (Fla.1991); Abbarno v. State, 654 So. 2d 225 (Fla. 5th DCA 1995). Since defense counsel did not affirmatively agree to the omission of the instructions, but only acquiesced in the instructions as given, the exception does not apply. Therefore, we must reverse Roberts’ conviction for attempted…
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Morgan v. State, 146 So. 3d 508 (Fla. 5th DCA 2014)…88 So. 3d 970, 972 (Fla. 5th DCA 2012); see also Tindall v. State, 997 So. 2d 1260, 1261-62 (Fla. 5th DCA 2009); Jimenez v. State, 994 So. 2d 1141, 1143 (Fla. 3d DCA 2008); York v. State, 932 So. 2d 413, 416 n. 2 (Fla. 2d DCA 2006); Abbamo v. State, 654 So. 2d 225, 226 (Fla. 5th DCA 1995). The doctrine is founded on the principle that “‘a party may not make or invite error at trial and then take advantage of the error on appeal.’ ” Shef [*513] field, v. Superior Ins. Co., 800 So. 2d 197, 202-08 (Fla.2001) (qu…
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Tindall v. State, 997 So. 2d 1260 (Fla. 5th DCA 2009)…tion of the [*1262] instruction. In response to the jury’s question, Appellant affirmatively agreed that the court should essentially reaffirm the instruction as previously given. Armstrong v. State, 579 So. 2d 734, 735 (Fla. 1991); Abbamo v. State, 654 So. 2d 225 (Fla. 5th DCA 1995). AFFIRMED. ORFINGER and COHEN, JJ., concur.…
Authorities Cited
- Rojas v. State, 552 So. 2d 914 (Fla. 1989)
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991)
- State v. Lucas, 645 So. 2d 425 (Fla. 1994)
- Miller v. State, 573 So. 2d 337 (Fla. 1991)