OSCAR ORTIZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that defense counsel's failure to object to the omission of a justifiable homicide instruction did not constitute an express waiver, and the trial court had a responsibility to instruct the jury properly.
The defendant was convicted of attempted robbery with a firearm and attempted second degree murder with a firearm. The jury was not instructed on just…
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COBB, Judge.
The defendant was charged with attempted robbery with a firearm and attempted first degree murder with a firearm. He was convicted as charged on the attempted robbery count and was convicted on the attempt ed murder charge of the lesser offense of attempted second degree murder with a firearm. We affirm the attempted robbery conviction, but reverse the attempted second degree murder conviction.
The jury was not instructed on justifiable homicide. After the charge conference, defense counsel stated to the court: “Judge, we have looked over [the charges], and we don’t have any objection to any of the instructions.” The state contends that this language constitutes an express waiver of the justifiable homicide charges in accordance with the opinion in Armstrong v. State, 579 So. 2d 734 (Fla.1991). As we read Armstrong and Blandón v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995), there was no express waiver. As we held in Blandón, the mere failure to object to the omission of a justifiable homicide charge in an attempted murder case does not constitute the affirmative waiver discussed in Armstrong. It was the trial court’s responsibility to see that the jury was properly instructed and that the definition of justifiable homicide was read.
The judgment and sentence for attempted second degree murder are reversed, and this cause remanded for a new trial on that charge.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR NEW TRIAL.
W. SHARP and GOSHORN, JJ., concur.
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State v. Damani Spencer, 216 So. 3d 481 (Fla. 2017)….”); Roberts v. State, 694 So. 2d 825, 826 (Fla. 2d DCA 1997) (“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.”); Ortiz v. State, 682 So. 2d 217, 217 (Fla. 5th DCA 1996) (“As we held in Blandon[ v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995) ], the mere failure to object to the omission of a justifiable homicide charge in an attempted murder case does not constitute the affirmative waiver dis…
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Beckham v. State, 884 So. 2d 969 (Fla. 1st DCA 2004)…Appellant’s right to the complete instruction, we are constrained to reverse and remand for a new trial on Count One. See, e.g., Black v. State, 695 So. 2d 459 (Fla. 1st DCA 1997); Roberts v. State, 694 So. 2d 825 (Fla. 2d DCA 1997); Ortiz v. State, 682 So. 2d 217 (Fla. 5th DCA 1996). We have de novo review of the question of law whether the trial court fundamentally erred by failing to give a complete and accurate jury instruction (explaining justifiable and excusable homicide) for the offense of manslaught…
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Williams v. State, 145 So. 3d 997 (Fla. 1st DCA 2014)…; Van Loan, 736 So. 2d at 804 (concluding defense counsel did not waive fundamental error in jury instructions when there was “no indication that Van Loan’s trial counsel knew that the omission was error and agreed to the omission”); Ortiz v. State, 682 So. 2d 217, 218 (Fla. 5th DCA 1996) (rejecting argument that the defense waived the failure to instruct on justifiable homicide by stating to the court: “Judge, we have looked over [the charges], and we don’t have any objection to any of the instructions,” bec…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991)
- Blandon v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995)