LAZARO GOMEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lazaro Gomez was convicted of attempted first-degree murder with a firearm for shooting his former girlfriend. He appealed arguing the trial court committed fundamental error by failing to instruct the jury on justifiable attempted homicide and the lesser-included offense of attempted first-degree murder without a firearm. The appellate court affirmed the conviction.
The court affirmed the conviction, finding that defense counsel waived the justifiable homicide instruction by advising the trial court it was not applicable, and that the failure to instruct on a lesser-included offense in a non-capital case without a timely request does not constitute fundamental error.
[1] A defendant waives the right to a jury instruction on justifiable attempted homicide when trial counsel advises the court that the instruction is not applicable.
[2] A trial court's failure to instruct on a necessarily included lesser offense in a non-capital case does not constitute fundamental error when no timely request is made by…
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Join FLexlaw to unlock all legal intelligence“We find that defense counsel specifically waived the right to have the jury instructed on justifiable attempted homicide by advising the trial court that the instruction was not applicable.”
Establishes that the defendant's own counsel waived the justifiable homicide instruction by affirmatively stating it was not applicable.
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Join FLexlaw to unlock all legal intelligenceGomez drove to his former girlfriend's workplace and demanded she get into his car. When she refused, he pointed a gun at her and repeated the demand.…
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Lazaro Gomez appeals from his conviction for attempted first degree murder with a firearm. He contends that the trial court committed fundamental error by 1) failing to instruct the jury on justifiable attempted homicide and 2) failing to instruct the jury on the necessarily lesser-included offense of attempted first degree murder without a firearm. We affirm.
The victim was Gomez’ former girlfriend. She testified that Gomez had driven to her place of employment and demanded that she get into his car. When she refused, Gomez pointed a gun at her and repeated his demand. When the victim still refused, Gomez shot her in the neck, rendering her a quadriplegic. The victim’s testimony was corroborated by several eyewitnesses.
During the charge conference, defense counsel1 requested the giving of the definition of excusable homicide but advised the court that the justifiable homicide definition was “not really applicable.” Based on defense counsel’s statement, the prosecutor agreed to delete the definition of justifiable homicide from the proposed jury instructions. As to lesser-included offenses, the trial court granted defense counsel’s request to instruct the jury on attempted second degree murder with a firearm, attempted voluntary manslaughter with a firearm, and aggravated battery causing great bodily harm or with a firearm. There was no request for an instruction on attempted first degree murder without a firearm.
We find that defense counsel specifically waived the right to have the jury instructed on justifiable attempted homicide by advising the trial court that the instruction was not applicable. Armstrong v. State, 579 So.2d 734 (Fla.1991).2
Gomez’ second argument on appeal must also fail. A trial court must instruct the jury on necessarily-included *702lesser offenses when a timely request is made to do so. Rodriguez v. State, 789 So.2d 513, 514 (Fla. 5th DCA 2001). When there is no timely request made by the defendant, a trial court’s failure to instruct on a necessarily-lesser included offense in a non-capital case does not constitute fundamental error. See Jones v. State, 484 So.2d 577 (Fla.1986); Richards v. State, 809 So.2d 38 (Fla. 5th DCA 2002).
AFFIRMED.
MONACO and LAWSON, JJ, concur.
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Citator
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Kendrick C. Silver v. State, 149 So. 3d 54 (Fla. 4th DCA 2014)…ruction (in that case, the omitted instruction also was “attempted manslaughter”) was not fundamental error, as the defendant failed to request the instruction. Cosme v. State, 89 So. 3d 1096, 1097 (Fla. 4th DCA 2012). Cosme cited to Gomez v. State, 5 So. 3d 700, 702 (Fla. 5th DCA 2009), for the proposition that, “[w]hen there is no timely request made by the defendant, a trial court’s failure to instruct on a neeessarily-lesser included offense in a non-capital case does not constitute fundamental error.”…
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Burns v. State, 170 So. 3d 90 (Fla. 1st DCA 2015)…enses) in a non-capital case is not fundamental error. To preserve such an error for appellate review, the defendant must request such an instruction and object to the trial court’s refusal to give one.” (citation omitted)). See also Gomez v. State, 5 So. 3d 700, 701-02 (Fla. 5th DCA 2009) (rejecting argument of defendant charged with attempted first-degree murder with a firearm that the trial court committed fundamental error by failing to instruct the jury on the necessarily lesser-included offense of att…
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Cosme v. State, 89 So. 3d 1096 (Fla. 4th DCA 2012)…undamentally erred in failing to give the attempted manslaughter instruction. We disagree. Because the defendant failed to request the instruction, the omission must rise to the level of fundamental error before we can review it. See Gomez v. State, 5 So. 3d 700, 702 (Fla. 5th DCA 2009) (‘When there is no timely request made by the defendant, a trial court’s failure to instruct on a necessarily-lesser included offense in a non-capital case does not constitute fundamental error.”). Given the facts surroundin…
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
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991)
- Jones v. State, 484 So. 2d 577 (Fla. 1986)
- Kirkendall v. State, 789 So. 2d 513 (Fla. 2d DCA 2001)
- Richards v. State, 809 So. 2d 38 (Fla. 5th DCA 2002)
- Morin v. State, 984 So. 2d 676 (Fla. 5th DCA 2008)
- Abouslam A. Ahmed v. State, 984 So. 2d 676 (Fla. 5th DCA 2008)