TERRY L. DUNCAN, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

Citator

Cited By (13 total)

• van Loan v. State, 736 So. 2d 803 (Fla. 2d DCA 1999)
  …26 (Fla. 2d DCA 1997) (citing Armstrong v. State, 579 So. 2d 734, 735 (Fla.1991)). Before this exception applies, defense counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it. Cf. Black v. State, 695 So. 2d 459, 461 (Fla. 1st DCA 1997). In the instant case, there is no indication that Van Loan’s trial counsel knew that the omission was error and agreed to the omission. The trial court shoulders the responsibility to properly instruct the jury on the defini…
• Moore v. State, 114 So. 3d 486 (Fla. 1st DCA 2013)
  …agree to the instruction as a whole. Further, it is unclear whether the record must demonstrate that counsel was aware of the error. This [*491] court has held that knowledge of the error is necessary to waive fundamental error. In Black v. State, 695 So. 2d 459, 460-61 (Fla. 1st DCA 1997), this court found a Lucas error in failing to instruct on excusable or justifiable homicide was not waived. There was no transcript of the charge conference, but the record reflected that after the instructions were read…
• State v. Damani Spencer, 216 So. 3d 481 (Fla. 2017)
  …)). The district courts have held that the Lucas/Armstrong exception does not apply where defense counsel merely acquiesced to jury instructions that did not provide a full instruction on justifiable or excusable homicide. See, e.g., Black v. State, 695 So. 2d 459, 461 (Fla. 1st DCA 1997) (“Before the exception recognized in Lucas can apply, defense counsel must be aware that an incorrect instruction is being read and must affirmatively agree to, or request, the incomplete instruction. These circumstances do…