problem instruction in Florida

2015Where, as here, the defendant is only asserting the defense of justifiable use of non-deadly force, the instruction might be better stated by substituting a period for the first comma and omitting the remainder of the language [so that the correct instruction would read]: “A person who is not engaged in an unlawful activity and who is in a place where he or she has a right to be has no duty to retreat and has the right to meet force with force.” Sims v. State, 140 So.3d 1000 , 1005 n. 7 (Fla. 1st DCA 2014) (finding instruction to be error but not reversible because Sims was not entitled to the

2015Where, as here, the defendant is only asserting the defense of justifiable use of non-deadly force, the instruction might be better stated by substituting a period for the first comma and omitting the remainder of the language: “A person who is not engaged in an unlawful activity and who is in a place where he or she has a right to be has no duty to retreat and has the right to meet force with force.” Id. at 1005 n. 7.

2000In Carnley v. Cochran, 369 U.S. 506, 516 , 82 S.Ct. 884 , 8 L.Ed.2d 70 , we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right.

2000In Carnley v. Cochran, 369 U.S. 506, 516 , 82 S.Ct. 884 , 8 L.Ed.2d 70 , we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right.

2025While the majority correctly sets forth Florida’s standard, articulated in Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007), I believe this should be revisited by our supreme court considering the holding of the Eleventh Circuit Court of Appeals in Guardado v. Secretary, Florida Department of Corrections, 112 F.4th 958 (11th Cir. 2024).

2014See Rangel v. State, 2013 WL 6510898 (Fla. 2d DCA Dec.13, 2013) (noting that the standard jury instruction on the justifiable use of deadly force is identical to the instruction considered in Talley, but holding that the erroneous instruction did not constitute funda mental error in that case); Bradley, supra (finding no fundamental error even though jury received the same erroneous instruction that was given in Talley). .The problem with the instruction is not as much with the extra comma as it is with the inclusion of the language after the first comma, which pertains only to the use of dead

2013Cf. Cousins Restaurant Assocs., L.P. v. TGI Friday’s, Inc., 789 So.2d 457 (Fla. 4th DCA 2001) (following the judge’s disclosure counsel unequivocally said that it was not a problem and allowed the hearing to continue).

2012Del Valle v. State, 80 So.3d 999 (Fla.2011).

1996Non-record activity is not, however, the only way to establish "good cause." Another basis for good cause recognized in case law is "calamity" or "disability." See, e.g., Brock v. Associates Fin., Inc., 617 So.2d 440 (Fla. 1st DCA 1993); A & W Elec. of Miami Inc. v. Abraira, 567 So.2d 36 (Fla. 3d DCA 1990); Barnes v. Ross, 386 So.2d 812 (Fla. 3d DCA 1980).

1996Non-record activity is not, however, the only way to establish "good cause." Another basis for good cause recognized in case law is "calamity" or "disability." See, e.g., Brock v. Associates Fin., Inc., 617 So.2d 440 (Fla. 1st DCA 1993); A & W Elec. of Miami Inc. v. Abraira, 567 So.2d 36 (Fla. 3d DCA 1990); Barnes v. Ross, 386 So.2d 812 (Fla. 3d DCA 1980).

1996Non-record activity is not, however, the only way to establish "good cause." Another basis for good cause recognized in case law is "calamity" or "disability." See, e.g., Brock v. Associates Fin., Inc., 617 So.2d 440 (Fla. 1st DCA 1993); A & W Elec. of Miami Inc. v. Abraira, 567 So.2d 36 (Fla. 3d DCA 1990); Barnes v. Ross, 386 So.2d 812 (Fla. 3d DCA 1980).

1994Although the lower court did the best it could to fashion an adequate jury instruction on attempted felony murder (an effort in which defense counsel appears on this record to have been utterly uninterested), the instruction given was so defective that the defendant was deprived of a fair trial. [3] The problem is that the instruction, as given, cannot be understood and cannot be applied by a jury in a manner consistent with Amlotte v. State, 456 So.2d 448 (Fla. 1984).

1992Corporation v. Noni, Inc., 227 So.2d 891 (Fla. 3d DCA 1969), is that the court assumed that a liquor license is like a chattel, which can be brought onto the premises.

1990See McCormick on Evidence, 3d Ed. Ch. 25, § 255 (1984); Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980) (preliminary hearing testimony). [6] Fla.R.Crim.P. 3.701.d.5. and 11. [1] The only possibility of non-fundamental error by the trial court would be a showing on appeal that the trial court erred in its ruling on Knight's unavailability as a witness at trial.

1990See McCormick on Evidence, 3d Ed. Ch. 25, § 255 (1984); Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980) (preliminary hearing testimony). [6] Fla.R.Crim.P. 3.701.d.5. and 11. [1] The only possibility of non-fundamental error by the trial court would be a showing on appeal that the trial court erred in its ruling on Knight's unavailability as a witness at trial.

1990NOTES [1] § 810.02(2), Fla. Stat. (1987). [2] § 812.014(2)(c)3, Fla. Stat. (1987). [3] Fla.R.Crim.P. 3.701.d.11. [4] See also State v. Dolen, 390 So.2d 407 (Fla. 5th DCA 1980). [5] Some other courts that have considered this problem when defense counsel takes a witness' deposition, have concluded the defendant's right of cross-examination is not violated.

1988Combs v. Aetna Insurance Co., 410 So.2d 1377 (Fla. 4th DCA 1982); Ellis v. McCaskill, 382 So.2d 808 (Fla. 2d DCA), rev. denied, 389 So.2d 1112 (Fla. 1980).

1988Combs v. Aetna Insurance Co., 410 So.2d 1377 (Fla. 4th DCA 1982); Ellis v. McCaskill, 382 So.2d 808 (Fla. 2d DCA), rev. denied, 389 So.2d 1112 (Fla. 1980).

1980However, in nearly all of the cases decided following State v. Garcia, supra , the minimal common denominator, which has been held sufficient to constitute a valid and effective waiver, was the defendant's signature accomplished in open court and incorporated either in the transcript of the proceedings or otherwise made part of the record.

1980In Whitehead v. Rogers, 223 So.2d 330 (Fla. 1969), the Florida Supreme Court was faced with the problem of whether a rule promulgated by the Game and Fresh Water Fish Commission, which established an open season for hunting between set dates, controlled over a state statute that prohibited the use of firearms on Sunday.

1972In a learned opinion by retired Chief Justice Warren, the court stated — “In upholding the validity of Rule 23(a), we reiterate the sentiment expressed in Berger v. United States, 295 U.S. 78 . . . that the government attorney in a criminal prosecution is not an ordinary party to a controversy, but a ‘servant of the law’ with a ‘twofold aim ... that guilt shall not escape or innocence suffer.’ It was in light of this concept of the role of prosecutor that Rule 23 (a) was framed, and we are confident that it is, in this light that it will continue to be invoked by government attorneys.

1963The court had the power to deny the motion on this ground * * * although the better course might have been to direct petitioner to amend his motion * * * . ( 373 U.S. at 18-20 ; 83 S.Ct. 1079 , 10 L.Ed.2d 148 .) «$ * * “Finally, we remark that the imaginative handling of a prisoner’s first motion would in general do much to anticipate and avoid the problem of a hearing on a second or successive motion.

1963The court had the power to deny the motion on this ground * * * although the better course might have been to direct petitioner to amend his motion * * * . ( 373 U.S. at 18-20 ; 83 S.Ct. 1079 , 10 L.Ed.2d 148 .) «$ * * “Finally, we remark that the imaginative handling of a prisoner’s first motion would in general do much to anticipate and avoid the problem of a hearing on a second or successive motion.