BRETT FENSTER, 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.
Brett Fenster appeals his conviction for attempted second degree murder, challenging the jury instruction for attempted manslaughter, prosecutorial comments during closing argument, and jail credit calculation. The court affirmed the conviction but remanded for correction of jail credit and certified questions of great public importance regarding attempted manslaughter.
The court held that the attempted manslaughter jury instruction does not constitute fundamental error because attempted manslaughter requires intent to commit an unlawful act that would result in death, not necessarily intent to kill, and the jury's verdict of guilty on the greater charge indicates no confusion. The prosecutor's comments, though unprofessional, do not rise to the level of harmless or fundamental error because the defendant failed to preserve most objections. However, the defendant is entitled to 1,373 days of jail credit for time served before sentencing.
[1] A jury instruction for attempted manslaughter is not fundamentally erroneous if it requires a finding that the defendant committed an act intended to cause death, rather…
[2] A trial court's ruling on an objection to a prosecutor's comment during closing argument is reviewed for whether the comment was a reasonable inference from the evidence.
Previewing 2 of 6 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 crime of attempted manslaughter requires an intent to commit an unlawful act that would have resulted in the victim's death rather than an intent to kill.”
Establishes the mental state required for attempted manslaughter, distinguishing it from attempted murder.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFenster was convicted of attempted second degree murder after a retrial. The trial court instructed the jury on the lesser included offense of attempt…
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 Attempted Manslaughter Jury Instruction cases and more on FLexlaw
The defendant appeals his conviction and sentence for attempted second degree murder. He raises five arguments: (1) the trial court erred in denying his motion for judgment of acquittal; (2) the trial court erred in overruling his objection to the standard jury instruction for attempted second degree murder; (3) the trial court fundamentally erred in giving the standard jury instruction for the lesser offense of attempted manslaughter; (4) the prosecutor’s improper comments during closing argument require a new trial; and (5) the trial court erred in failing to give him credit for time served. We reject the first four arguments but agree with the fifth argument. We write to address the third, fourth, and fifth arguments only.
The trial court instructed the jury on the lesser included offense of attempted manslaughter as follows, in pertinent part:
To prove the crime of attempted manslaughter, a lesser included offense, the State must prove the following element beyond a reasonable doubt: [the defendant] committed an act which was intended to cause the death of [the alleged victim] and which would have resulted in the death of [the alleged victim] except that someone prevented [the defendant] from killing [the alleged victim] or he failed to do so.
(emphasis added). The defendant now argues that instruction constitutes fundamental error because it required the jury to find the defendant intentionally attempted to kill the victim. We reject that argument pursuant to our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010). There, the defendant raised the same argument. Id. at 73. We concluded that no fundamental error occurred because “the crime of attempted manslaughter requires an intent to commit an unlawful act that would have resulted in the victim’s death rather than an intent to kill.” Id. at 74-75. We also concluded *467that the instruction, as worded, did not confuse the jury because the jury found the defendant guilty of attempted second degree murder. Id. at 75. “Thus, the jury found the defendant intended the act that was ‘imminently dangerous’ and demonstrated a ‘depraved mind.’ ” Id.
We apply our conclusions in Williams to this case. As in Williams, we also certify the following questions of great public importance:
(1) Does the standard jury instruction on attempted manslaughter constitute fundamental error?
(2) Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So.3d 252 (Fla.2010)?
Further, as in Williams, we certify conflict with the first district’s contrary decision in Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009).
As for the prosecutor’s closing argument, the defendant identifies fifteen comments which he alleges were improper. The defendant concedes, however, that in response to those fifteen comments, he objected only twice. One objection was on the basis that the prosecutor’s comment was not supported by the evidence. We agree with the trial court’s decision to overrule that objection because the comment was a reasonable inference based on the totality of the evidence. The second objection occurred when the prosecutor directly addressed the defendant. The trial court sustained the objection, struck the comment, and admonished the prosecutor to make no such further comments. We conclude that the trial court’s response cured the prosecutor’s action.
The defendant argues that because he objected to the two comments addressed above, this court may review the remaining thirteen comments to determine whether reversible error occurred. In support, the defendant cites, among other cases, Martinez v. State, 761 So.2d 1074 (Fla.2000). There, our supreme court held that “it is appropriate to consider both the preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt.” Id. at 1082-83. Pursuant to that authority, we have considered both the preserved and unpreserved errors and conclude that any errors were harmless beyond a reasonable doubt. See Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”) (emphasis added in Ventura ). We also conclude that the cumulative effect of the prosecutor’s comments does not rise to the level of fundamental error. See Boyd v. State, 45 So.3d 557, 560 (Fla. 4th DCA 2010) (“Improper comments rise to the level of fundamental error only where the error ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ”) (citation omitted).
The defendant correctly notes that this is not the first time we have been asked to review allegedly improper comments during closing argument by the same prosecutor in this case. In Fenster v. State, 944 So.2d 477 (Fla. 4th DCA 2006), we held that the prosecutor’s improper comments during closing argument in the first trial of this case warranted a new trial. Id. at 479. Our opinion there, however, focused on our conclusion that the prosecutor “made several comments that were unsupported by the evidence.” Id. We also observed that the defendant’s trial counsel “properly preserved this issue for appellate review by timely objecting to the improper prosecutorial remarks and by stat*468ing the specific legal ground upon which his objections were based, ie., lack of evi-dentiary support.” Id. at 479 n. 1 (citation omitted). During the second trial at issue here, though, the defendant objected to only one comment as being unsupported by the evidence, which objection the trial court properly overruled. While we would summarize many of the prosecutor’s remaining comments in the second trial as being both unprofessional and unnecessary to obtain a conviction, those comments do not rise to the level of harmful or fundamental error.1
As for the defendant’s jail credit, we held in our review of the first trial that “the trial court erred in calculating the number of days [the defendant] spent in county jail before sentencing and therefore did not give him full credit for time served.” Id. at 480. We advised the trial court “to revisit this, if necessary, upon retrial.” Id. at 481. Upon retrial and conviction, however, the trial court did not give the defendant full credit for the time served at the time of his sentencing on May 7, 2007. We presume that the trial court’s failure to comply with our previous holding was inadvertent. Therefore, we remand with direction to the trial court to credit the defendant with the 1,373 days of time served at the time of his sentencing on May 7, 2007.
Conviction affirmed; remanded for correction of jail credit.
TAYLOR, J„ and PEGG, ROBERT L., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Milagro Cunningham v. State, 74 So. 3d 568 (Fla. 4th DCA 2011)…ontgomery to the circumstance where the defendant was charged with attempted first-degree murder, but convicted of attempted second-degree murder, and the jury was given the standard instruction for attempted manslaughter. See also Fenster v. State, 61 So. 3d 465 (Fla. 4th DCA 2011); Sessions v. State, 59 So. 3d 1208 (Fla. 4th DCA 2011); Mansfield v. State, 41 So. 3d 410 (Fla. 4th DCA 2010). In light of Williams, we affirm as to the issue raised, but note that there is a conflict among of the district courts…
-
Fenster v. State, 141 So. 3d 232 (Fla. 4th DCA 2014)…PER CURIAM. The defendant appealed from a conviction and sentence for attempted second degree murder as a lesser included offense of attempted first degree murder. This court affirmed. Fenster v. State, 61 So. 3d 465 (Fla. 4th DCA 2011). Our affirmance was based on our opinion in Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010) (Williams I”). Williams I held that the giving of the standard jury instruction on attempted manslaughter was not fundamental error i…
-
Fenster v. State, 135 So. 3d 283 (Fla. 2014)…LABARGA, J. We have for review Fenster v. State, 61 So. 3d 465 (Fla. 4th DCA 2011), in which the Fourth District Court of Appeal cited as authority its decision in Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), quashed, 123 So. 3d 23 (Fla.2013). At the time the Fourth District issued its decision in Fenst…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Martinez v. State, 761 So. 2d 1074 (Fla. 2000)
- Amos Augustus Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010)
- Ventura v. State, 29 So. 3d 1086 (Fla. 2010)
- Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009)
- Boyd v. State, 45 So. 3d 557 (Fla. 4th DCA 2010)
- Fenster v. State, 944 So. 2d 477 (Fla. 4th DCA 2006)