afterthought instruction in Florida

2014But the afterthought defense provides that “ ‘[i]f the force or violence is motivated by a reason other than to rob the victim, then the taking of the property would not constitute a robbery.’ ” DeJesus v. State, 98 So.3d 105, 107 (Fla. 2d DCA 2012) (quoting Perkins v. State, 814 So.2d 1177, 1178 (Fla. 4th DCA 2002)).

2012Cf. Concepcion v. State, 938 So.2d 559, 562 (Fla. 5th DCA 2006) (holding that the trial court erred in refusing to give an afterthought instruction because there was evidence the defendant attacked the victim in the course of a domestic dispute even though he also drove off with her car and money); Perkins, 814 So.2d at 1178-79 (holding that the trial court erred in refusing to give an afterthought instruction based on the defendant’s testimony that he stabbed the victim in self-defense even though the defendant also left the scene with some of the victim’s belongings).

2017The Fifth District reversed the robbery conviction based on the denial of the instruction, observing as well that if the afterthought theory “were believed by the jury, the robbery necessary to support the felony murder theory would be negated.” Id.

2006Davis v. State, 922 So. 2d 438 (Fla. 5th DCA 2006), also involved the trial court's refusal to give an afterthought instruction, resulting in the defendant's conviction of both first-degree (premeditated and felony) murder and robbery.

2014But the afterthought defense provides that “ ‘[i]f the force or violence is motivated by a reason other than to rob the victim, then the taking of the property would not constitute a robbery.’ ” DeJesus v. State, 98 So.3d 105, 107 (Fla. 2d DCA 2012) (quoting Perkins v. State, 814 So.2d 1177, 1178 (Fla. 4th DCA 2002)).

2014See DeJesus, 98 So.3d at 108 (explaining that the standard jury instruction for robbery “erroneously allows the jury to ‘assume that so long as the force and the taking constituted a continuous series of acts or events the motive for the force would be irrelevant’ ” (quoting Perkins, 814 So.2d at 1179 )); see also Munroe v. State, 28 So.3d 973, 976 (Fla. 2d DCA 2010) (holding that an evidentiary hearing was required to determine whether counsel performed deficiently in failing to advise the defendant of a potentially viable defense, noting that the defendant’s “claim of prejudice — that he wou

2015We expressly recognized a distinction regarding fundamental error between a disputed element of a crime and an element of a crime about which there is no dispute in the case.”); Fussell v. State, 154 So.3d 1233, 1235 (Fla. 1st DCA 2015) (“An erroneous jury instruction cannot be fundamental unless it pertains to a matter genuinely at issue in the case.”); Taylor v. State, 114 So.3d 355, 355 (Fla. 4th DCA 2013) (rejecting claim of fundamental error for failure to give an afterthought instruction with regard to robbery because the defense at trial was one of misidentification).

2015We expressly recognized a distinction regarding fundamental error between a disputed element of a crime and an element of a crime about which there is no dispute in the case.”); Fussell v. State, 154 So.3d 1233, 1235 (Fla. 1st DCA 2015) (“An erroneous jury instruction cannot be fundamental unless it pertains to a matter genuinely at issue in the case.”); Taylor v. State, 114 So.3d 355, 355 (Fla. 4th DCA 2013) (rejecting claim of fundamental error for failure to give an afterthought instruction with regard to robbery because the defense at trial was one of misidentification).

2014See DeJesus, 98 So.3d at 108 (explaining that the standard jury instruction for robbery “erroneously allows the jury to ‘assume that so long as the force and the taking constituted a continuous series of acts or events the motive for the force would be irrelevant’ ” (quoting Perkins, 814 So.2d at 1179 )); see also Munroe v. State, 28 So.3d 973, 976 (Fla. 2d DCA 2010) (holding that an evidentiary hearing was required to determine whether counsel performed deficiently in failing to advise the defendant of a potentially viable defense, noting that the defendant’s “claim of prejudice — that he wou

2014See Hayes v. State, 120 So.3d 640, 641 (Fla. 2d DCA 2013) (holding that “acknowledge-ments and answers of [a] general nature did not conclusively refute [the defendant’s] allegation of ineffective assistance based on his counsel’s failure to pursue a specific defense”).

2012Cf. Concepcion v. State, 938 So.2d 559, 562 (Fla. 5th DCA 2006) (holding that the trial court erred in refusing to give an afterthought instruction because there was evidence the defendant attacked the victim in the course of a domestic dispute even though he also drove off with her car and money); Perkins, 814 So.2d at 1178-79 (holding that the trial court erred in refusing to give an afterthought instruction based on the defendant’s testimony that he stabbed the victim in self-defense even though the defendant also left the scene with some of the victim’s belongings).