HERMAN MINOR, PETITIONER,
v.
HARRY SINGLETARY, SECRETARY OF FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
PER CURIAM.
Herman Minor petitions this Court for an opportunity to file a second appeal on the ground that his appellate counsel overlooked an appealable issue the first time around. Minor contends 1) that the trial judge gave an erroneous oral jury instruction regarding the definition of “excusable homicide,” 2) that the error was fundamental, and 3) that his appellate counsel omitted this fundamental error argument in Minor’s appeal. The record, however, reveals that the jury was provided with the correct jury instructions in written form. Thus, there was no fundamental error. See Wike v. State, 698 So. 2d 817 (Fla.), cert. denied, — U.S.-, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998); Thomas v. State, 711 So. 2d 89 (Fla. 1st DCA 1998). Accordingly, the petition is denied.
Petition denied.
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Polls v. State, 134 So. 3d 1068 (Fla. 4th DCA 2013)…698 So. 2d 817, 822 (Fla.1997) (erroneous oral jury instruction using an “or” where an “and” was required did not constitute fundamental error where the jury was provided with a correct written copy of the [*1071] instructions); Minor v. Singletary, 730 So. 2d 326, 327 (Fla. 3d DCA 1999) (erroneous oral jury instruction regarding the definition of “excusable homicide” was not fundamental error where the jury was provided with the correct written instructions). The Fifth District, however, appears to have rea…
Authorities Cited
- Warfield Raymond Wike, Jr. v. State, 698 So. 2d 817 (Fla. 1997)
- Thomas v. State, 711 So. 2d 89 (Fla. 1st DCA 1998)