DIEGO MARTINEZ, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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A fundamentally erroneous jury instruction, even if it shifts the burden of proof, is waived if trial counsel affirmatively accepts the instruction.
[1] A defendant's affirmative acceptance of an erroneous jury instruction waives the claim of fundamental error, even if the instruction improperly placed the burden of proof…
[2] A claim of ineffective assistance of appellate counsel for failing to raise a fundamental error on direct appeal may be denied if the fundamental error was waived by tria…
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Join FLexlaw to unlock all legal intelligencePetitioner sought habeas corpus relief, alleging ineffective appellate counsel failed to raise an erroneous jury instruction that placed the burden of…
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Diego Martinez filed a petition for writ of habeas corpus, contending that his appellate counsel provided constitutionally ineffective assistance for failing to raise, on direct appeal, the trial court’s giving of an erroneous instruction. That instruction advised the jury that Martinez had the burden of proving the defense of self-defense beyond a reasonable doubt. Martinez asserts that this instruction was fundamentally erroneous and appellate counsel’s failure to raise this fundamental error on appeal entitles him to relief.
We need not determine whether the error was fundamental, because even if it was fundamental error, it was waived by trial counsel’s affirmative acceptance of the trial court’s erroneous instruction. Falwell v. State, 88 So.3d 970 (Fla. 5th DCA 2012) (holding fundamental error was waived where the defense affirmatively agreed to an erroneous jury instruction which placed the burden on defendant to prove self-defense beyond a reasonable *1191doubt). See also Richardson v. State, 818 So.2d 679, 680 (Fla. 3d DCA 2002) (holding “defense counsel may waive [a fundamentally erroneous jury instruction] by ‘affirmatively agreeing] to the omission or the alteration of a jury instruction!.]’ ”) (quoting Philippe v. State, 795 So.2d 173, 174 (Fla. 3d DCA 2001)). Rather than seeking habeas corpus relief with this Court, Martinez should have filed a motion for post-conviction relief with the trial court pursuant to Florida Rule of Criminal Procedure 3.850.1
We deny the petition without prejudice for Martinez to file, within sixty days, a legally sufficient motion for postconviction relief pursuant to Rule 3.850, limited to the issue raised in this petition. The Office of the Public Defender shall continue as counsel for Martinez for the postconviction proceedings below.
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Fredric F. Pickett, Jr. v. State, 109 So. 3d 841 (Fla. 3d DCA 2013)…was erroneously given. Even if an erroneous jury instruction constitutes fundamental error, this Court has held that the error is deemed waived if [*844] counsel requests, or affirmatively accepts, the erroneous jury instruction. Martinez v. State, 98 So. 3d 1190 (Fla. 3d DCA 2012); Jimenez v. State, 994 So. 2d 1141, 1142-43 (Fla. 3d DCA 2008); Falwell v. State, 88 So. 3d 970 (Fla. 5th DCA 2012); Tindall v. State, 997 So. 2d 1260, 1261 (Fla. 5th DCA 2009). During the charge conference, when the court explain…
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Hunter v. State, 149 So. 3d 158 (Fla. 4th DCA 2014)…third-degree felony murder of another, rejecting appellant’s claim that a jury instruction on principals was fundamentally erroneous. Not only did defense counsel affirmatively agree to the instruction, thus waiving any error, see Martinez v. State, 98 So. 3d 1190 (Fla. 3d DCA 2012), but we conclude that there was evidence to support the instruction. Appellant Hunter was called on the phone by his co-defendant, Shanovia Mack, who was his cousin. She was angry with Valcourt, one of the victims in this case, f…
Authorities Cited
- Philippe v. State, 795 So. 2d 173 (Fla. 3d DCA 2001)
- Richardson v. State, 818 So. 2d 679 (Fla. 3d DCA 2002)
- Falwell v. State, 88 So. 3d 970 (Fla. 5th DCA 2012)