SHERREY DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Sherrey Davis appeals her convictions for trafficking in cocaine and conspiracy to traffic in cocaine. The appellate court reversed because the trial court committed fundamental error by using the conjunction 'and/or' between Davis's and her codefendant's names in jury instructions on essential elements, allowing the jury to convict Davis based solely on her codefendant's conduct.
The trial court committed fundamental error by including 'and/or' between Davis's and her codefendant's names in the jury instructions. This language erroneously permitted Davis to be convicted based on findings regarding her codefendant's conduct alone, depriving her of her right to an individualized verdict.
[1] A jury instruction that includes the conjunction "and/or" between the names of codefendants in essential elements of an offense may constitute fundamental error.
[2] Fundamental error in jury instructions may occur when the use of "and/or" permits a conviction based solely on the conduct of a codefendant.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the jury instruction allowed the appellant to be convicted based on a finding that his codefendant knowingly sold, purchased, or manufactured heroin and that his codefendant knew that the substance was heroin”
Explains the constitutional defect created by 'and/or' language, allowing conviction based on codefendant's conduct alone
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSherrey Davis was charged with trafficking in cocaine and conspiracy to traffic in cocaine alongside a codefendant. The trial court instructed the jur…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Fundamental Error In Jury Instructions cases and more on FLexlaw
WHATLEY, Judge.
Sherrey Davis appeals her convictions for trafficking in cocaine and conspiracy to traffic in cocaine. We conclude that the trial court committed fundamental error in instructing the jury because it included the conjunction “and/or” between Davis’s name and the name of her codefendant in essential jury instructions. We reverse.1
In Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005), the appellant was charged with several offenses, including conspiracy to traffic in heroin and trafficking in illegal drugs. The appellant argued that the trial court committed fundamental error in instructing the jury on the offenses by including the conjunction “and/or” between his name and his codefendant’s name as to elements the State was required to prove beyond a reasonable doubt. In Cabrera, the jury instruction for trafficking in illegal drugs stated in part:
Before you can find the defendants guilty of trafficking in illegal drugs 28 grams or more, the State must prove the following four elements beyond a reasonable doubt: One, Miguel Cabrera and/or Nestor Rios knowingly sold, purchased, manufactured, delivered, brought into Florida, or possessed a certain substance. Two, the substance was heroin or any mixture containing any such substance. Three, the quantity of the substance involved was 28 grams or more. Four, Miguel A. Cabrera and/or Nestor E. Rios knew that the substance was heroin or any mixture containing such substance.
Id.
This court noted that the jury instruction allowed the appellant to be convicted based on a finding that his codefendant knowingly sold, purchased, or manufactured heroin and that his codefendant knew that the substance was heroin. Id. This court further noted that the “use of the conjunction ‘and/or’ erroneously permitted the conviction of each defendant for conspiracy to traffic in heroin on a finding that either of them conspired with cocon-spirators in trafficking heroin, twenty-eight grams or more.” Id. This court held that it was fundamental error to include the conjunction “and/or” between the names of the codefendants in the jury instructions because the jury may have convicted the appellant based solely upon a finding that his codefendant’s conduct satisfied an element of the offenses. Id.
In the present case, Davis was similarly charged with trafficking and conspiracy to traffic in cocaine. As in Cabrera, the trial court improperly included the “and/or” conjunction between Davis’s name and the name of her codefendant when it instructed the jury as to both offenses, and the instruction deprived Davis of her right to an individualized verdict.
Reversed and remanded for a new trial.
NORTHCUTT and VILLANTI, JJ„ Concur. . We do not find merit in Davis’s argument that the trial court erred in admitting Detective Garfield’s testimony regarding her previous contact with Davis, and we affirm that point without discussion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
-
Zamir Garzon v. State, 980 So. 2d 1038 (Fla. 2008)…Fla. 5th DCA 2006) (use of “and/or” found not fundamental error because codefendant acquitted of all charges); Pizzo v. State, 916 So. 2d 828 (Fla. 2d DCA 2005) (use of “and/or”), quashed on other grounds, 945 So. 2d 1203 (Fla.2006); Davis v. State, 895 So. 2d 1195 (Fla. 2d DCA 2005) (use of "and/or”); Randolph v. State, 903 So. 2d 264 (Fla. 2d DCA 2005) (codefendant to Davis); Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005) (use of “and/or” with principals instruction); Dorsett v. McRay, 901 So. 2d 225 (Fla.…
-
Dorsett v. McRAY, 901 So. 2d 225 (Fla. 3d DCA 2005)…occurred when, through the use of the “and/ or” conjunction,1 the trial court confusingly and incorrectly implied that Dorsett could be convicted solely upon a finding that Lloyd’s conduct satisfied the elements of the offenses. See Davis v. State, 895 So. 2d 1195 (Fla. 2d DCA 2005); Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005); Concepcion v. State, 857 So. 2d 299 (Fla. 5th DCA 2003); Davis v. State, 804 So. 2d 400 (Fla. 4th DCA 2001); Williams v. State, 774 So. 2d 841 (Fla. 4th DCA 2000); see also Gas…
-
Rasheed Randolph v. State, 903 So. 2d 264 (Fla. 2d DCA 2005)…conclude that the trial court committed fundamental error in instructing the jury, because it included the conjunction “and/or” between Randolph’s name and the name of his co-defendant in essential jury instructions. We reverse.1 In Davis v. State, 895 So. 2d 1195 (Fla. 2d DCA 2005), this court reversed the convictions of Randolph’s codefendant, Sherrey Davis, based on the jury instructions at issue.2 Because the instructions given for Randolph were identical to those given for Davis, we also reverse Randolph…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005)