PAUL MILLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Miller was convicted by jury of trafficking and conspiracy to traffic in cocaine, but the Fourth District Court of Appeal reversed his conviction due to fundamental error in the jury instruction on entrapment. The trial court used an inaccurate standard jury instruction that failed to properly allocate the burden of proof regarding predisposition, which the court determined constituted fundamental error affecting the validity of the trial.
The court reversed Miller's conviction, finding that the trial court committed fundamental error by giving the inaccurate standard jury instruction on entrapment. Although the defendant failed to preserve the issue by objecting at trial, the error was so fundamental that it reached into the validity of the trial itself, as the jury was misdirected on a critical element of the entrapment defense.
[1] A jury instruction on entrapment that incorrectly places the burden of proof on the defendant to prove lack of predisposition constitutes fundamental error.
[2] A defendant must object to a jury instruction at trial to preserve the issue for appeal, unless the error is fundamental.
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Join FLexlaw to unlock all legal intelligence“Fundamental error is error which "must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error."”
Establishes the standard for fundamental error that allows appellate review despite failure to object at trial
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Join FLexlaw to unlock all legal intelligencePaul Miller was tried by jury and convicted of trafficking and conspiracy to traffic in 400 grams or more of cocaine. At trial, the court instructed t…
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PER CURIAM.
Appellant, Paul Miller, was tried by jury and convicted of trafficking and conspiracy to traffic in 400 grams or more of cocaine. We reverse.
At trial the court instructed the jury on the defense of entrapment, reading Florida Standard Jury Instruction in Criminal Cases 3.04(c)(2) (1993). The final paragraph of the standard jury instruction provided:
On the issue of entrapment, the defendant must prove to you by a preponderance of the evidence that his criminal conduct occurred as a result of entrapment.
Appellant did not object at trial to the standard jury instruction on entrapment given by the court. However, he now complains on appeal that the court committed reversible error by failing to give a fully accurate instruction on the current state of the law on entrapment. Relying on our decision in Vazquez v. State, 700 So. 2d 5, 13 (Fla. 4th DCA 1997), appeal dismissed, 718 So. 2d 755, 23 Fla. L. Weekly S428 (Fla.1998), appellant argues that the error was fundamental. In Vazquez, we determined that the portion of the standard jury instruction addressing predisposition is inaccurate or incomplete.1
Florida Rule of Criminal Procedure 3.390(d) provides that “[n]o party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires....” Since appellant failed to preserve this issue by objecting at trial, we are precluded from considering the matter on appeal unless there was fundamental error. Archer v. State, 673 So. 2d 17 (Fla.1996). Fundamental error is error which “must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained -without the assistance of the alleged error.” State v. Delva, 575 So. 2d 643, 644-5 (Fla.1991)(quoting Brown v. State, 124 So. 2d 481, 484 (Fla.1960)). “[Fjundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Stewart v. State, 420 So. 2d 862, 863 (Fla.1982).
In Vazquez, we analyzed our supreme court’s decision in Munoz v. State, 629 So. 2d 90 (1993), which held that a defendant asserting the statutory defense of entrapment initially has the burden to establish lack of predisposition, but as soon as the defendant produces evidence of no predisposition, the burden shifts to the prosecution to rebut this evidence beyond a reasonable doubt. We concluded that the above quoted portion of the standard jury instruction does not comport with the dictates of Munoz or “fairly and correctly present the current state of the law on this issue.” Id. at 13. See also Henkel v. State, 709 So. 2d 130 (Fla. 4th DCA 1998).
For the reasons stated above, we find that the court committed fundamental error by giving the standard jury instruction on entrapment. Because we are reversing appellant’s conviction on this point, we do not reach the other issues raised in his appeal.
REVERSED and REMANDED.
POLEN, GROSS and TAYLOR, JJ., concur. . Since Vazquez the supreme court has approved a new version of Florida Standard Jury Instruction 3.04(c)(2) which provides in pertinent part:
On the issue of entrapment, the defendant must prove to you by the greater weight of the evidence that a law enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means that evidence which is more persuasive and convincing. If the defendant does so, the State must prove beyond a reasonable doubt that the defendant was predisposed to commit the (crime charged). The state must prove defendant's predisposition to commit the (crime charged) existed prior to and independent of the inducement or encouragement.
In re Standard Jury Instr. In Criminal Cases, 23 Fla. L. Weekly S407, S415-416, 723 So. 2d 123 (Fla. July 16, 1998).
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Zackery Holiday v. State, 753 So. 2d 1264 (Fla. 2000)…LEWIS, J. We have for review Holiday v. State, 730 So. 2d 830 (Fla. 1st DCA 1999), which certified conflict with Miller v. State, 723 So. 2d 353 (Fla. 4th DCA 1998), as to whether the trial court committed fundamental error by instructing the jury with the then-current standard instruction on entrapment when such instruction had not yet been modified — as it was later in Standard Jury Instru…
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Zackery Holiday v. State, 730 So. 2d 830 (Fla. 1st DCA 1999)…damental error.” Since the entrapment instruction pertains to a defense rather than to an essential element of the crime charged, no fundamental error occurred. We recognize that the Fourth District recently ruled to the contrary in Miller v. State, 723 So. 2d 353 (Fla. 4th DCA 1998), and accordingly certify conflict with that decision. AFFIRMED. BOOTH, JOANOS and WEBSTER, JJ., CONCUR.…
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Crutchfield v. State, 739 So. 2d 1193 (Fla. 4th DCA 1999)…laim was not properly preserved because he did not object at trial and that any error was invited. The cases cited by the state for this proposition are persuasive; however, the state fails to consider this court’s recent opinion in Miller v. State, 723 So. 2d 353 (Fla. 4th DCA 1998), rev. granted, State v. Miller, 732 So. 2d 328 (Fla.1999). In Miller, the trial court utilized the same jury instruction on entrapment as the trial court used in the case before us. See id. at 354. Even though the defendant in Mi…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ike Brown v. State, 124 So. 2d 481 (Fla. 1960)
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- Munoz v. State, 629 So. 2d 90 (Fla. 1993)
- STANDARD JURY INSTRUCTIONS IN CRIM. CASES (97-2), 723 So. 2d 123 (Fla. 1998)
- Archer v. State, 673 So. 2d 17 (Fla. 1996)
- Vazquez v. State, 700 So. 2d 5 (Fla. 4th DCA 1997)
- State v. Vazquez, 718 So. 2d 755 (Fla. 1998)
- Henkel v. State, 709 So. 2d 130 (Fla. 4th DCA 1998)