JACQUELYN DAVIS A/K/A JACQUELYN HOGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
In this direct appeal of judgment and sentence imposed for conviction for sale of cocaine, we affirm on every issue raised by appellant except for one. We agree with appellant that she is entitled to a new trial because the conjunction “and/or” was included between appellant’s name and the name of appellant’s co-defendant in pertinent portions of the jury instructions in a manner that could have misled the jury into believing that it could convict appellant based solely on a finding that the co-defendant sold cocaine. See Cabrera v. State, 890 So. 2d 506, 508 (Fla. 2d DCA 2005); Dorsett v. McRay, 901 So. 2d 225, 226-27 (Fla. 3d DCA 2005); Concepcion v. State, 857 So. 2d 299, 301 (Fla. 5th DCA 2003); Davis v. State, 804 So. 2d 400, 404-05(Fla. 4th DCA 2001). See also Calabrese v. State, 886 So. 2d 396, 399 (Fla. 1st DCA 2004). As did the Second District, we “specifically reject the State’s argument that the use of the standard ‘principals’ instruction cured the erroneous instructions on the substantive elements of the offenses.” Zeno v. State, 910 So. 2d 394, 396 (Fla. 2d DCA 2005).
REVERSED and REMANDED FOR NEW TRIAL.
ERVIN, DAVIS and LEWIS, JJ., concur.
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Cited By (11 total)
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Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009)…aised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So. 2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So. 2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So. 2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So. 2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy). In Haliburton and the cases cited therein, under the actual…
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Zamir Garzon v. State, 980 So. 2d 1038 (Fla. 2008)…the Fourth. District Court of Appeal in Garzon v. State, 939 So. 2d 278 (Fla. 4th DCA 2006). The district court certified that its decision is in direct conflict with the decisions of the First and Second District Courts of Appeal in Davis v. State, 922 So. 2d 279 (Fla. 1st DCA 2006), Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005), and Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.1 In this case, we address the unobjected-to use of the “and/or”…1 / 2
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Zamir Garzon and Ray C. Balthazar v. State, 939 So. 2d 278 (Fla. 4th DCA 2006)…State’s argument that the use of the standard ‘principals’ instruction cured the erroneous instructions on the substantive elements of the offenses,” Zeno, 910 So. 2d at 396. Also, without analysis the first district followed Zeno in Davis v. State, 922 So. 2d 279 (Fla. 1st DCA 2006). As they have been cited to us in cases before this court, Zeno and Davis stand for the proposition that the “and/or” conjunction in the jury charge on substantive crimes is always fundamental error in a case with multiple codefe…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 804 So. 2d 400 (Fla. 4th DCA 2001)
- Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005)
- Concepcion v. State, 857 So. 2d 299 (Fla. 5th DCA 2003)
- Dorsett v. McRAY, 901 So. 2d 225 (Fla. 3d DCA 2005)
- Green v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)
- Raymundo Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)
- Gennaro Calabrese v. State, 886 So. 2d 396 (Fla. 1st DCA 2004)