opportunity to cure any error in Florida

2025Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (“‘[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’” (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982))); Sullivan v. State, 303 So. 2d 632, 635 (Fla. 1974) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”); Williams v. State, 947 So. 2d 517,

2015Further, the Ray Court stated: “ ‘It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’” Id. (quoting Sullivan v. State, 303 So.2d 632, 635 (Fla.1974)).

2021Adams v. State, 630 So. 2d 641, 642 (Fla. 3d DCA 1994) (holding that a jury instruction for resisting officer without violence that named the law enforcement officer was error but not fundamental error); Starks v. State, 627 So. 2d 1194, 1198 (Fla. 3d DCA 1993) (“‘It is well- established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’”) (quoting Ray v. State, 403 So. 2d 956, 960 (Fla. 1981) (citation and emphasis omitted)). 2

2015"It is well-established that " 'where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.' " " Moore v. State, 114 So.3d 486, 489 (Fla. 1st DCA 2013) (quoting Ray v. State, 403 So.2d 956 , 960 (Fla.1981)), review granted sub nom.

2010See Farinas v. State, 569 So.2d 425 , 429 n. 7 (Fla.1990) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take *165 advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”) (citation omitted).

2010See Farinas v. State, 569 So.2d 425 , 429 n. 7 (Fla.1990) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”) (citation omitted).

2015"It is well-established that " 'where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.' " " Moore v. State, 114 So.3d 486, 489 (Fla. 1st DCA 2013) (quoting Ray v. State, 403 So.2d 956 , 960 (Fla.1981)), review granted sub nom.

2014“It is well-established that “ ‘where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’ ” ” Moore v. State, 114 So.3d 486, 489 (Fla. 1st DCA 2013) (quoting Ray v. State, 403 So.2d 956 , 960 (Fla.1981)).

2025Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (“‘[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’” (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982))); Sullivan v. State, 303 So. 2d 632, 635 (Fla. 1974) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”); Williams v. State, 947 So. 2d 517,

2025Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (“‘[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’” (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982))); Sullivan v. State, 303 So. 2d 632, 635 (Fla. 1974) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”); Williams v. State, 947 So. 2d 517,

2025Finally, there was no error in the trial court instructing the jury on felony murder. “[I]t is well settled that if an indictment charges premeditated murder, the State need not charge felony murder or the particular underlying felony to receive a felony murder instruction.” Crain v. State, 894 So. 2d 59, 69 (Fla. 2004); see also 2 Weatherspoon v. State, 214 So. 3d 578, 585 (Fla. 2017) (“[P]remeditated murder necessarily includes the theory of felony murder because ‘the perpetration, or attempt to perpetrate, any of said felonies, during which a homicide is committed, stands in lieu of and is

2025Finally, there was no error in the trial court instructing the jury on felony murder. “[I]t is well settled that if an indictment charges premeditated murder, the State need not charge felony murder or the particular underlying felony to receive a felony murder instruction.” Crain v. State, 894 So. 2d 59, 69 (Fla. 2004); see also 2 Weatherspoon v. State, 214 So. 3d 578, 585 (Fla. 2017) (“[P]remeditated murder necessarily includes the theory of felony murder because ‘the perpetration, or attempt to perpetrate, any of said felonies, during which a homicide is committed, stands in lieu of and is

2025Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (“‘[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’” (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982))); Sullivan v. State, 303 So. 2d 632, 635 (Fla. 1974) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”); Williams v. State, 947 So. 2d 517,

2025Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (“‘[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’” (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982))); Sullivan v. State, 303 So. 2d 632, 635 (Fla. 1974) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”); Williams v. State, 947 So. 2d 517,

2025Finally, there was no error in the trial court instructing the jury on felony murder. “[I]t is well settled that if an indictment charges premeditated murder, the State need not charge felony murder or the particular underlying felony to receive a felony murder instruction.” Crain v. State, 894 So. 2d 59, 69 (Fla. 2004); see also 2 Weatherspoon v. State, 214 So. 3d 578, 585 (Fla. 2017) (“[P]remeditated murder necessarily includes the theory of felony murder because ‘the perpetration, or attempt to perpetrate, any of said felonies, during which a homicide is committed, stands in lieu of and is

2021Adams v. State, 630 So. 2d 641, 642 (Fla. 3d DCA 1994) (holding that a jury instruction for resisting officer without violence that named the law enforcement officer was error but not fundamental error); Starks v. State, 627 So. 2d 1194, 1198 (Fla. 3d DCA 1993) (“‘It is well- established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’”) (quoting Ray v. State, 403 So. 2d 956, 960 (Fla. 1981) (citation and emphasis omitted)). 2

2021Cf. Sullivan v. State, 170 So. 2d 632, 635 (Fla. 1974) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”). (2) Caldwell Next, Allen argues that the trial court’s guilt-phase jury instruction that it was “the judge’s job to determine a proper sentence” if the jury found Allen guilty of first-degree premeditated murder, combined with the prosecutor’s statement during the State’s penalty-phase opening argument that it

2021Adams v. State, 630 So. 2d 641, 642 (Fla. 3d DCA 1994) (holding that a jury instruction for resisting officer without violence that named the law enforcement officer was error but not fundamental error); Starks v. State, 627 So. 2d 1194, 1198 (Fla. 3d DCA 1993) (“‘It is well- established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’”) (quoting Ray v. State, 403 So. 2d 956, 960 (Fla. 1981) (citation and emphasis omitted)). 2

2021We review this question of law de novo, see Davis v. State, 136 So. 3d 1169, 1201 (Fla. 2018), and hold that Allen is not entitled to relief.

2015“Where [a] challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Martinez v. State, 981 So.2d 449, 455 (Fla.2008) (second alteration in original) (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)).

2015“Where [a] challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense . . . of a fair trial.’” Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008) (second alteration in original) (quoting Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)).

2015The Ray court further explained that “[t]he failure to object is a strong indication that, at the time and under the circumstances, the defendant did not regard the alleged fundamental error as harmful or prejudicial,” id., and “ ‘where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal,’ ” id. (quoting Sullivan v. State, 303 So.2d 632, 635 (Fla.1974), cert. denied, 428 U.S. 911 , 96 S.Ct. 3226 , 49 L.Ed.2d 1220 (1976)); see also Joyner v. State, 41 So.3d 30

2015The Ray court further explained that “[t]he failure to object is a strong indication that, at the time and under the circumstances, the defendant did not regard the alleged fundamental error as harmful or prejudicial,” id., and ‘“where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal,”’ id. (quoting Sullivan v. State, 303 So. 2d 632, 635 (Fla. 1974), cert. denied, 428 U.S. 911 (1976)); see also Joyner v. State, 41 So. 3d 306, 307 (Fla. 1st DCA 2010) (“[W]h

2015The Ray court further explained that “[t]he failure to object is a strong indication that, at the time and under the circumstances, the defendant did not regard the alleged fundamental error as harmful or prejudicial,” id., and “ ‘where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal,’ ” id. (quoting Sullivan v. State, 303 So.2d 632, 635 (Fla.1974), cert. denied, 428 U.S. 911 , 96 S.Ct. 3226 , 49 L.Ed.2d 1220 (1976)); see also Joyner v. State, 41 So.3d 30

2015The Ray court further explained that “[t]he failure to object is a strong indication that, at the time and under the circumstances, the defendant did not regard the alleged fundamental error as harmful or prejudicial,” id., and ‘“where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal,”’ id. (quoting Sullivan v. State, 303 So. 2d 632, 635 (Fla. 1974), cert. denied, 428 U.S. 911 (1976)); see also Joyner v. State, 41 So. 3d 306, 307 (Fla. 1st DCA 2010) (“[W]h

2015“Where [a] challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Martinez v. State, 981 So.2d 449, 455 (Fla.2008) (second alteration in original) (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)).

2015“Where [a] challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense . . . of a fair trial.’” Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008) (second alteration in original) (quoting Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)).

2013Appellant relies on Ruffin v. State, in which the Fifth District reversed and remanded for a new trial when the trial court allowed testimony of police officers “that in their opinion Ruffin was the man in the videotape” showing the crime. 549 So.2d 250, 251 (Fla. 5th DCA 1989).

2013It is well-established that “ ‘where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’” Ray v. State, 403 So.2d 956, 960 (Fla.1981). “[Fundamental error may be waived where defense counsel requests an erroneous instruction.” Armstrong v. State, 579 So.2d 734, 735 (Fla.1991).

1997Sullivan v. State, 303 So.2d 632, 635 (Fla.1974), cert. denied, 428 U.S. 911 , 96 S.Ct. 3226 , 49 L.Ed.2d 1220 (1976); see Slaughter v. State, 585 So.2d 1087 (Fla. 3d DCA 1991); United States v. Fuentes-Coba, 738 F.2d 1191, 1198 (11th Cir.1984), cert. denied, 469 U.S. 1213 , 105 S.Ct. 1186 , 84 L.Ed.2d 333 (1985).

1997Sullivan v. State, 303 So.2d 632, 635 (Fla.1974), cert. denied, 428 U.S. 911 , 96 S.Ct. 3226 , 49 L.Ed.2d 1220 (1976); see Slaughter v. State, 585 So.2d 1087 (Fla. 3d DCA 1991); United States v. Fuentes-Coba, 738 F.2d 1191, 1198 (11th Cir.1984), cert. denied, 469 U.S. 1213 , 105 S.Ct. 1186 , 84 L.Ed.2d 333 (1985).

1985Furthermore, "a motion for mistrial is addressed to the sound discretion of the trial court, Ferguson v. State, 417 So.2d 639 (Fla. 1982); Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982), ... and `the power to declare a mistrial ... should be exercised with great care and ... only in cases of absolute necessity,' Salvatore v. State, 366 So.2d 745, 750 (Fla. 1978), cert. denied, 444 U.S. 885 , 100 S.Ct. 177 , 62 L.Ed.2d 115 (1979)." Morales v. State, 431 So.2d 648, 649 (Fla. 3d DCA 1983).