claim of fundamental error in Florida

2026See, e.g., Rosier v. State, 276 So. 3d 403 , 406 (Fla. 1st DCA 2019) (citing Hall v. State, 823 So. 2d 757, 763 (Fla. 2002)); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959); Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (“[T]he defendant did not raise a claim of fundamental error relating to this issue in his initial brief; therefore, this court is not required to undertake a fundamental error analysis.”).

2026Yet, Former Husband’s initial brief does not directly argue that fundamental error was committed, see Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (“Furthermore, the defendant did not raise a claim of fundamental error . . . in his initial brief; therefore, this court is not required to undertake a fundamental error analysis.” (citations omitted)), though he does argue that, under the circumstances, the entry of an IDO was statutorily prohibited.

2015Cf. 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). “[W]here defense counsel agrees to a standard- jury instruction and then challenges the conviction based upon fundamental error in that instruction, reversal would ha

2015See 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.”)

2015Cf. 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). “[W]here defense counsel agrees to a standard- jury instruction and then challenges the conviction based upon fundamental error in that instruction, reversal would ha

2015See 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.”)

2013See Elliot v. State, 49 So.3d 269, 270 (Fla. 1st DCA 2010).

2012Elliot v. State, 49 So.3d 269, 270 (Fla. 1st DCA 2010).

2026See, e.g., Rosier v. State, 276 So. 3d 403 , 406 (Fla. 1st DCA 2019) (citing Hall v. State, 823 So. 2d 757, 763 (Fla. 2002)); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959); Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (“[T]he defendant did not raise a claim of fundamental error relating to this issue in his initial brief; therefore, this court is not required to undertake a fundamental error analysis.”).

2026See, e.g., Rosier v. State, 276 So. 3d 403 , 406 (Fla. 1st DCA 2019) (citing Hall v. State, 823 So. 2d 757, 763 (Fla. 2002)); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959); Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (“[T]he defendant did not raise a claim of fundamental error relating to this issue in his initial brief; therefore, this court is not required to undertake a fundamental error analysis.”).

2026And we did so in the context of considering rule 3.800(a)’s neighboring subdivision, rule 3.800(b), and its procedure for correcting and preserving errors in the sentencing order pending appeal.15 Jackson explained that an unpreserved claim of error in the sentencing process, even one of constitutional magnitude—there, the partial denial of counsel during sentencing—must be raised on direct appeal as a claim of fundamental error and cannot be preserved after trial through a rule 3.800(b) motion to correct the sentence. 983 So. 2d at 574 (“Having concluded that a claim of denial of counsel at s

2026And we did so in the context of considering rule 3.800(a)’s neighboring subdivision, rule 3.800(b), and its procedure for correcting and preserving errors in the sentencing order pending appeal.15 Jackson explained that an unpreserved claim of error in the sentencing process, even one of constitutional magnitude—there, the partial denial of counsel during sentencing—must be raised on direct appeal as a claim of fundamental error and cannot be preserved after trial through a rule 3.800(b) motion to correct the sentence. 983 So. 2d at 574 (“Having concluded that a claim of denial of counsel at s

2026See, e.g., Rosier v. State, 276 So. 3d 403 , 406 (Fla. 1st DCA 2019) (citing Hall v. State, 823 So. 2d 757, 763 (Fla. 2002)); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959); Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (“[T]he defendant did not raise a claim of fundamental error relating to this issue in his initial brief; therefore, this court is not required to undertake a fundamental error analysis.”).

2026See, e.g., Rosier v. State, 276 So. 3d 403 , 406 (Fla. 1st DCA 2019) (citing Hall v. State, 823 So. 2d 757, 763 (Fla. 2002)); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959); Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (“[T]he defendant did not raise a claim of fundamental error relating to this issue in his initial brief; therefore, this court is not required to undertake a fundamental error analysis.”).

2019Smith v. State, 76 So. 3d 379, 383 (Fla. 1st DCA 2011).

2015See Smith v. State, 76 So.3d 379, 383 (Fla. 1st DCA 2011).

2015Cf. 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). “[W]here defense counsel agrees to a standard- jury instruction and then challenges the conviction based upon fundamental error in that instruction, reversal would ha

2015See 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.”)

2013“A defendant who enters a general or open plea does not waive double jeopardy claims.” Demps v. State, 965 So.2d 1242, 1243 (Fla. 4th DCA 2007). “[A] conviction that violates the prohibition against double jeopardy constitutes fundamental error ... and a claim of fundamental error may be raised for the first time on appeal.” Kilmartin v. State, 848 So.2d 1222, 1224 (Fla. 1st DCA 2003).

2010“A defendant who enters a general or open plea does not waive double jeopardy claims.” See Demps v. State, 965 So.2d 1242, 1243 (Fla. 4th DCA 2007). “[A] conviction that violates the prohibition against double jeopardy constitutes funda *907 mental error ... and a claim of fundamental error may be raised for the first time on appeal.” Kilmartin v. State, 848 So.2d 1222, 1224 (Fla. 1st DCA 2003) (citations omitted).

2013“A defendant who enters a general or open plea does not waive double jeopardy claims.” Demps v. State, 965 So.2d 1242, 1243 (Fla. 4th DCA 2007). “[A] conviction that violates the prohibition against double jeopardy constitutes fundamental error ... and a claim of fundamental error may be raised for the first time on appeal.” Kilmartin v. State, 848 So.2d 1222, 1224 (Fla. 1st DCA 2003).

2010“A defendant who enters a general or open plea does not waive double jeopardy claims.” See Demps v. State, 965 So.2d 1242, 1243 (Fla. 4th DCA 2007). “[A] conviction that violates the prohibition against double jeopardy constitutes funda *907 mental error ... and a claim of fundamental error may be raised for the first time on appeal.” Kilmartin v. State, 848 So.2d 1222, 1224 (Fla. 1st DCA 2003) (citations omitted).

2026As articulated by the Florida Supreme Court, fundamental error is error “which goes to the foundation of the case or goes to the merits of the cause of action.” Sanford v. Rubin, 237 So. 2d 134 , 137–38 (Fla. 1970) (holding that it was not fundamental error to allow recovery of attorney’s fees even though the constitutionality of the statutory basis for the fees was doubtful).

2007See Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970); Corvo v. State, 916 So.2d 44, 46 (Fla. 3d DCA 2005); Barfield v. State, 871 So.2d 929, 930-31 (Fla. 5th DCA 2004).

2015Cf. 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). “[W]here defense counsel agrees to a standard- jury instruction and then challenges the conviction based upon fundamental error in that instruction, reversal would ha

2015See 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.”)

2007Although the defendant failed to raise the issue below, a double jeopardy violation constitutes fundamental error, see State v. Johnson, 483 So.2d 420, 421 (Fla.1986), and a claim of fundamental error may be raised for the first time on direct appeal.

2004Appellant responds that the dual convictions constitute fundamental error, and that this appeal is permitted by rule 9.140(b)(2)(A)(ii)e as one "otherwise provided by law." We agree with appellant because it is clear that a conviction that violates the prohibition against double jeopardy constitutes fundamental *931 error, e.g., State v. Johnson, 483 So.2d 420 (Fla.1986); and a claim of fundamental error may be raised for the first time on appeal.

2026Similarly, in rejecting a claim of fundamental error in jury instructions on self-defense, we once remarked that “juries use their common experience and apply a street version of self defense that allows a defendant to use a reasonable amount of force under the circumstances, and no more.” Farmer v. State, 975 So. 2d 1275, 1277 (Fla. 4th DCA 2008).

2026“A claim of fundamental error is reviewed de novo.” Grant v. State, 266 So. 3d 203, 205 (Fla. 4th DCA 2019). 2 (Fla. 4th DCA 2007)).

2026“Where it is reasonable and possible to distinguish between specific incidents or occurrences, then each should be contained in a separate count of the accusatory document.” Pestano v. State, 306 So. 3d 1025 , 1027 (Fla. 3d DCA 2020) (quoting State v. Dell’Orfano, 651 So. 2d 1213, 1216 (Fla. 4th DCA 1995)).

2025In determining whether a sentencing error is fundamental, “the inquiry must focus on the nature of the error, its qualitative effect on the sentencing process and its quantitative effect on the sentence.” Bailes v. State, 382 So. 3d 1 , 4 (Fla. 4th DCA 2024) (quoting Maddox v. State, 760 So. 2d 89, 99 (Fla. 2000)).

2025In that case, the Court stated that “a defendant has no constitutional due process right to the correction of unpreserved error.” Dortch, 242 So. 3d at 1081.

2025Consequently, this claim of error has been waived for appellate review, and this Court is not required to undertake a fundamental error analysis on Calabrese’s behalf.”); see also D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla. 2018) (Canady, J., dissenting) (“This requirement of specific 6 Quarterman certainly did not address—and could not have addressed—Rule 9.140(b)(2)(A)(ii)b., because that provision was not promulgated until eight years after the Quarterman decision.

2025A. Ineffective Assistance of Appellate Counsel This Court has explained the standard of review for claims of ineffective assistance of appellate counsel as follows: “The standard of review for ineffective appellate counsel claims mirrors the Strickland standard for ineffective assistance of trial counsel.” [Wickham v. State, 124 So. 3d 841, 863 (Fla. 2013).] Specifically, to be entitled to habeas relief on the basis of ineffective assistance of appellate counsel, the defendant must establish [first, that] the alleged omissions are of such magnitude as to constitute a serious error or substanti

2021See Cavagnaro, 117 So. 3d at 1114 (holding the failure to give standard jury instruction 3.7, or any similar instruction, was fundamental error, and required reversal of the conviction and remand for a new trial); Smith, 206 So. 3d at 578 (relying on Cavagnaro, finding fundamental error where the jury charge did not include Florida Standard Jury Instruction (Criminal) 3.7 or any similar instruction, and reversing and remanding for a new trial); Usry, 284 So. 3d at 1120 (reversing and remanding for a new trial, holding that the failure to instruct the jury as to the critical concept of reasonab

2021See Bush v. State, 295 So. 3d 179 , 212 (Fla. 2020) (explaining that where, as here, the claim of fundamental error relates to the death sentence, “fundamental error” is error that “reaches down into the validity of the trial itself to the extent that a . . . jury recommendation of death could not have been obtained without the assistance of the alleged error”) (quoting Card v. State, 803 So. 2d 613, 622 (Fla. 2001)).

2021See Cavagnaro, 117 So. 3d at 1114 (holding the failure to give standard jury instruction 3.7, or any similar instruction, was fundamental error, and required reversal of the conviction and remand for a new trial); Smith, 206 So. 3d at 578 (relying on Cavagnaro, finding fundamental error where the jury charge did not include Florida Standard Jury Instruction (Criminal) 3.7 or any similar instruction, and reversing and remanding for a new trial); Usry, 284 So. 3d at 1120 (reversing and remanding for a new trial, holding that the failure to instruct the jury as to the critical concept of reasonab

2021See Cavagnaro, 117 So. 3d at 1114 (holding the failure to give standard jury instruction 3.7, or any similar instruction, was fundamental error, and required reversal of the conviction and remand for a new trial); Smith, 206 So. 3d at 578 (relying on Cavagnaro, finding fundamental error where the jury charge did not include Florida Standard Jury Instruction (Criminal) 3.7 or any similar instruction, and reversing and remanding for a new trial); Usry, 284 So. 3d at 1120 (reversing and remanding for a new trial, holding that the failure to instruct the jury as to the critical concept of reasonab

2020See Franqui v. State, 965 So. 2d 22, 35 (Fla. 2007) (concluding that claim of fundamental error in an initial postconviction motion with respect to prosecutor’s remark was procedurally barred because it could have been raised as fundamental error on direct appeal).