STATE OF FLORIDA, PETITIONER,
v.
JIMMY MOORE, JR., RESPONDENT
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The court discharged its jurisdiction and dismissed review of the case.
The First District Court of Appeal certified two questions of great public importance regarding jury instructions in a criminal case. The Florida Supr…
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We initially accepted jurisdiction under article V, section 3(b)(4), of the Florida Constitution to review Moore v. State, 114 So.3d 486 (Fla. 1st DCA 2013), a decision in which the First District Court of Appeal certified the following questions to be of great public importance:
IN ORDER FOR COUNSEL TO WAIVE AN ERROR IN A JURY INSTRUCTION THAT WOULD OTHERWISE BE FUNDAMENTAL, IS IT ONLY NECESSARY THAT COUNSEL AFFIRMATIVELY AGREE TO THE INSTRUCTION, OR IS IT ALSO NECESSARY ' FOR COUNSEL TO AFFIRMATIVELY AGREE TO THE PORTION OF THE INSTRUCTION THAT IS ERROR AND/OR TO BE AWARE THAT THE INSTRUCTION IS ERRONEOUS?
WHEN A DEFENDANT IS CONVICTED OF EITHER MANSLAUGHTER OR A GREATER OFFENSE NOT MORE THAN ONE STEP REMOVED, DOES THE FAILURE TO INSTRUCT THE JURY ON JUSTIFIABLE OR EXCUSABLE HOMICIDE CONSTITUTE FUNDAMENTAL ERROR NOT SUBJECT TO A HARMLESS ERROR ANALYSIS EVEN WHERE THE RECORD REFLECTS THERE WAS NO DISPUTE AS TO THIS ISSUE AND THERE WAS NO EVIDENCE PRESENTED FROM WHICH THE JURY COULD FIND *1187JUSTIFIABLE OR EXCUSABLE HOMICIDE?
Id. at 493-94. After further consideration and hearing oral argument in this case, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we hereby dismiss review.
It is so ordered.
NO MOTION FOR REHEARING WILL BE ALLOWED.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.
CANADY, J., dissents.
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Citator
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State v. Damani Spencer, 216 So. 3d 481 (Fla. 2017)…nts.2 It is so ordered. PARIENTE, LEWIS, and QUINCE, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON and LAWSON, JJ„ concur. . We previously granted review of Moore, but ultimately discharged jurisdiction. See State v. Moore, 181 So. 3d 1186, 1187 (Fla. 2016). . Because convictions are being reversed on the basis of fundamental error due to the giving of incomplete jury instructions, we refer to the Supreme Court Committee on Standard Jury Instructions in Criminal Cases the matter of w…
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Knight v. State, 267 So. 3d 38 (Fla. 1st DCA 2016)…ds. We certify conflict with Caruthers v. State , 232 So. 3d 441 (Fla. 4th DCA 2017). We also re-certify as a question of great public importance a question we certified in Moore v. State , 114 So. 3d 486, 489 (Fla. 1st DCA 2013), review dismissed , 181 So. 3d 1186, 1186-87 (Fla. 2016). * * * Appellant challenges his conviction and thirty-year sentence for attempted second-degree murder of his former girlfriend.2 The evidence supported the conclusion that he used a heavy, metal hydraulic jack handle to beat…1 / 2
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Knight v. State, 41 Fla. L. Weekly Fed. D 1760 (Fla. 1st DCA 2018)
Authorities Cited
- Moore v. State, 114 So. 3d 486 (Fla. 1st DCA 2013)