NESTOR RIOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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NORTHCUTT, Judge.
The State charged Nestor Rios and several codefendants with racketeering, conspiracy and drug trafficking offenses. Rios was tried with codefendant Miguel Cabrera. As we have explained in our opinion in Cabrera v. State, 890 So. 2d 506, 508 (Fla. 2d DCA 2005), the trial court committed fundamental error by including the conjunction and/or between Rios’s and Cabrera’s names in the jury instructions for the various crimes. For example, in a trafficking instruction, the judge stated that the jurors must find that “Miguel A. Cabrera and/or Nelson E. Rios knew that the substance was heroin.... ” The State has conceded that the decision in Cabrera controls this appeal. Accordingly, we reverse Rios’s convictions and remand for a new trial.
Reversed and remanded.
CASANUEVA and LaROSE, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Zamir Garzon v. State, 980 So. 2d 1038 (Fla. 2008)…hat use of "and/or” was fundamental error held ineffective assistance of appellate counsel); Lloyd v. Crosby, 917 So. 2d 988 (Fla. 3d DCA 2005) (codefendant to Dorsett); Cabrera, 890 So. 2d 506 (use of "and/or” in conspiracy charges); Rios v. State, 905 So. 2d 931 (Fla. 2d DCA 2005) (codefendant to Cabrera); Gaskin v. State, 869 So. 2d 646 (Fla. 3d DCA 2004) (use of “and/or” in burglary underlying intended offense options); Concepcion v. State, 857 So. 2d 299 (Fla. 5th DCA 2003) (use of "and” in oral instruct…
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Raymundo Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)…r. . This court has reached the same conclusion in subsequent decisions involving the same or [*396] similar jury instructions. Davis v. State, 895 So. 2d 1195 (Fla. 2d DCA 2005); Randolph v. State, 903 So. 2d 264 (Fla. 2d DCA 2005); Rios v. State, 905 So. 2d 931 (Fla. 2d DCA 2005) (Cabrera’s codefendant).…
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Rozlyn Pizzo v. State, 910 So. 2d 287 (Fla. 2d DCA 2005)…ring based on our determination that the trial court committed fundamental error in instructing the jury on the crime of conspiracy to commit rack [*294] eteering. See Cabrera v. State, 890 So. 2d 506, 507 (Fla. 2d DCA 2005); see also Rios v. State, 905 So. 2d 931, 932 (Fla. 2d DCA 2005). III. Resentencing on Remand Our disposition of this case will require resentencing on remand. In order to assist the court in this effort, as we did in Pizzo I, we note that the court erred in imposing restitution, costs o…
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- Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005)