SEAN LAMAR HOWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sean Lamar Howell was convicted of second-degree murder with a firearm after being charged with first-degree murder. On appeal, he challenged his conviction on two grounds: that he was tried before a six-person jury instead of twelve, and that the trial court refused to instruct the jury on third-degree felony murder. The appellate court affirmed the conviction.
The court affirmed the conviction. The six-person jury issue was not preserved for appellate review because no objection was raised at trial, and counsel had knowingly waived the twelve-person jury requirement. Any error in failing to instruct on third-degree felony murder would be harmless because the conviction was for second-degree murder with a firearm, a more serious offense, and the jury was instructed on manslaughter with a firearm, which is only one step removed from the conviction.
[1] A defendant's right to a twelve-person jury in a capital case may be waived by counsel.
[2] An appellate court will not consider an issue that was not preserved for review by a contemporaneous objection in the trial court.
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Join FLexlaw to unlock all legal intelligence“counsel can waive client's right to 12-person jury”
Establishes that Howell's counsel had the authority to waive the twelve-person jury requirement in exchange for the state's agreement not to seek the death penalty.
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Join FLexlaw to unlock all legal intelligenceAppellant Howell was charged with first-degree murder and tried before a six-person jury. His trial counsel had waived the right to a twelve-person ju…
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WEBSTER, Judge.
In this direct criminal appeal, appellant, convicted of second-degree murder with a firearm following his trial on a charge of first-degree murder, seeks a new trial. He claims entitlement to a new trial for two reasons — because he was tried before a jury of six persons, rather than twelve; and because the trial court refused to instruct the jury on the lesser-included offense of third-degree felony murder. We affirm.
Section 913.10, Florida Statutes (1995), provides that “[tjwelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases.” Appellant argues that, because he was tried on the charge of first-degree murder before a 6-person jury, he is entitled to a new trial.
However, this issue was not preserved for appellate review, because no objection was ever voiced to the trial court. See Castor v. State, 365 So. 2d 701 (Fla.1978) (requirement of contemporaneous objection designed to permit trial court opportunity to correct error at early stage, avoiding unnecessary appeals).
See generally Melbourne v. State, 679 So. 2d 759 (Fla. 1996) (denial of objection to peremptory challenge as racially motivated not preserved for review when objection not renewed immediately before jury sworn, because error could easily have been corrected without compromising entire trial).
Based upon our review of the record, it is clear that no objection was voiced because appellant’s counsel had waived the right to a 12-person jury in return for the state’s agreement not to seek the death penalty if appellant was convicted as charged. State v. Griffith, 561 So. 2d 528 (Fla.1990) (counsel can waive client’s right to 12-person jury).
In fact, both trial counsel and appellant announced that the jury selected was acceptable.
The record reflects that appellant’s counsel initially requested a jury instruction on third-degree felony murder, premised on the underlying felony of an aggravated assault with a firearm.
However, our reading of the record leads us to conclude that the request for such an instruction was subsequently abandoned. Even if this were not the case, any error in failing to give such an instruction would be harmless. Appellant was convicted of second-degree murder with a firearm, a life felony. §§ 775.087(l)(a) & 782.04(2)-(3), Fla. Stat. (1993).
Third-degree felony murder, premised on the underlying felony of an aggravated assault with a firearm, is a second-degree felony. § 782.04(4), Fla. Stat. (1998). It may not be reclassified to a first-degree felony pursuant to section 775.087(1) because use of a firearm is an essential element of the offense when the underlying felony is an aggravated assault or battery with a firearm. E.g., Webb v. State, 410 So. 2d 944 (Fla. 1st DCA), review denied, 421 So. 2d 68 (Fla.1982). Although it did not instruct the jury regarding third-degree felony murder, the trial court did instruct the jury regarding manslaughter with a firearm, a first-degree felony. §§ 775.087(l)(b) & 782.07, Fla.Stat. (1993).
Third-degree felony murder premised on the underlying felony of aggravated assault with a firearm is a lesser-ineluded offense two steps removed from second-degree murder with a firearm. Because the jury found appellant guilty of second-degree murder with a firearm even though it was instructed on manslaughter with a firearm, a lesser-included offense only one step removed, any error in failing to instruct on third-degree felony murder, as well, would be harmless. Pope v. State, 679 So. 2d 710 (Fla.1996); State v. Abreau, 363 So. 2d 1063 (Fla.1978).
AFFIRMED.
MINER and LAWRENCE, JJ., concur.
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Jimenez v. State, 167 So. 3d 497 (Fla. 3d DCA 2015)…ther than twelve persons. While this failed to comply with the statutory requirement, it was not fundamental error such that it could have been raised for the first time on appeal. Smith v. State, 857 So. 2d 268 (Fla. 5th DCA 2003); Howell v. State, 687 So. 2d 1339 (Fla. 1st DCA 1997). Because this non-fundamental error was not properly preserved in the trial court, precluding review on direct appeal, Jimenez’s appellate counsel did not provide ineffective assistance in failing to raise the issue. Petition d…
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Smart v. State, 695 So. 2d 448 (Fla. 1st DCA 1997)…d under Griffith in the absence of a personal waiver by the defendant, it does not follow that such a waiver can be effective even though it was expressly repudiated by the defendant as it was in the present case. As we explained in Howell v. State, 687 So. 2d 1339 (Fla. 1st DCA 1997), the rule in Griffith is based in part on the principle that a defendant must preserve an issue for review by an objection in the trial court. Because the defense lawyer’s waiver of a six-person jury is sufficient under Griffith,…
Authorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Jeanie H. Melbourne v. State, 679 So. 2d 759 (Fla. 1996)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Pope v. State, 679 So. 2d 710 (Fla. 1996)
- State v. Griffith, 561 So. 2d 528 (Fla. 1990)
- Mallory Webb, III v. State, 410 So. 2d 944 (Fla. 1st DCA 1982)