JOSHUA T. OLIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEES
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Joshua Oliver was convicted of manslaughter for a stabbing at a nightclub and sentenced to 30 years in prison. He appealed claiming the jury instructions on justifiable use of deadly force were fundamentally erroneous, but the court affirmed because his counsel affirmatively requested and agreed to the instructions at the charge conference, thereby waiving the claim of error.
The court affirmed the conviction because Oliver's counsel affirmatively requested and specifically agreed to the justifiable use of deadly force instructions at the charge conference, thereby waiving any claim of fundamental error in those instructions. The court also affirmed all other issues raised by Oliver without discussion.
[1] A defendant waives a claim of fundamental error in jury instructions when defense counsel affirmatively requests and specifically agrees to those instructions at a charge…
[2] Affirmative request and specific agreement to jury instructions by defense counsel precludes a subsequent claim of fundamental error regarding those instructions.
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Join FLexlaw to unlock all legal intelligence“By affirmatively requesting the instruction he now challenges, [the defendant] has waived any claim of error in the instruction.”
Establishes the core principle that affirmative request for jury instructions waives claims of error in those instructions.
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Join FLexlaw to unlock all legal intelligenceOliver was convicted of manslaughter for a stabbing that occurred at a nightclub. He was sentenced to 30 years in prison. His sole defense at trial wa…
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Appellant was convicted of manslaughter and sentenced to 30 years in prison for a stabbing that occurred at a nightclub. He contends that the jury instructions on his sole defense — justifiable use of deadly force — were fundamentally erroneous for the reasons stated in Floyd v. State, 151 So.3d 452 (Fla. 1st DCA 2014). We affirm because, at the charge conference, Appellant’s counsel affirmatively requested and specifically agreed to the applicable parts of the justifiable use of deadly force instructions that were to be included, thereby waiving any claim of fundamental error in the instructions. See Armstrong v. State, 579 So.2d 734, 735 (Fla.1991) (“By affirmatively requesting the instruction he now challenges, [the defendant] has waived any claim of error in- the instruction.”); Joyner v. State, 41 So.3d 306, 307 (Fla. 1st DCA 2010) (“[W]here defense counsel agrees to a standard jury instruction and then challenges the conviction based upon fundamental error in that instruction, reversal would have the unintended conse.quence of encouraging defense counsel to ‘stand mute and, if necessary, agree to an erroneous instruction’ or sacrifice his client’s opportunity for a second trial.”) (quoting Calloway v. State, 37 So.3d 891 (Fla. 1st DCA 2010)); cf. Williams v. State, 145 So.3d 997, 1003 (Fla. 1st DCA 2014) (explaining that waiver of a claim of fundamental error in a jury instruction requires more than “unknowing acquiescence” to the instruction); Moore v. State, 114 So.3d 486, 493 (Fla. 1st DCA 2013) (holding that counsel’s mere failure to object to an erroneous jury instruction is insufficient by itself to waive a claim of fundamental error based upon the instruction). We affirm the other issues raised by Appellant without discussion.
AFFIRMED.
PADOVANO, WETHERELL, and MAKAR, JJ., concur.
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Citator
Cited By
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Swearingden v. State, 213 So. 3d 370 (Fla. 1st DCA 2014)…ecord does not reflect that he specifically requested or affirmatively agreed to the challenged portions of the instructions, he did not waive the issue for appeal. See Moore v. State, 114 So. 3d 486, 490-93 (Fla. 1st DCA 2013); cf. Oliver v. State, 162 So. 3d 162, 2015 WL 376213, 40 Fla. L. Weekly D303 (Fla. 1st DCA Jan. 29, 2015) (rejecting defendant’s argument that jury instructions were fundamentally erroneous based on Floyd because, at the charge conference, defense counsel affirmatively requested and sp…
Authorities Cited
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991)
- Joyner v. State, 41 So. 3d 306 (Fla. 1st DCA 2010)
- Floyd v. State, 151 So. 3d 452 (Fla. 1st DCA 2014)
- Marcellus Desmond Calloway v. State, 37 So. 3d 891 (Fla. 1st DCA 2010)
- Moore v. State, 114 So. 3d 486 (Fla. 1st DCA 2013)
- United Auto. Ins. Co. v. Hallandale Open MRI, LLC, 145 So. 3d 997 (Fla. 4th DCA 2014)
- Williams v. State, 145 So. 3d 997 (Fla. 1st DCA 2014)