jury instructions constituted fundamental error in Florida

2015"In determining whether the jury instructions constituted fundamental error, we must consider 'the effect of the erroneous instruction in the context of the other instructions given, the evidence adduced in the case, and the arguments and trial strategies of counsel.' " Floyd, 151 So.3d at 454 (citing Smith v. State, 76 So.3d 379 , 383 (Fla. 1st DCA 2011) ).

2014In determining whether the jury instructions constituted fundamental error, we must consider “the effect of the erroneous instruction in the context of the other instructions given, the evidence adduced in the case, and the arguments and trial strategies of counsel.” Smith v. State, 76 So.3d 379, 383 (Fla. 1st DCA 2011).

2019This fact, coupled with an erroneous jury instruction and the prosecutor's emphasis on the [uncharged] deadly weapon theory of committing the offense, resulted in the possibility that the jury found Mr. Ortiz guilty based on a theory of the offense that was not charged in the information."); Burson, 102 So. 3d at 717 (holding that the jury instructions constituted fundamental error where the State "presented evidence of both charged and uncharged methods of committing trafficking, and it argued that any of those methods could be used to find Burson guilty . . . [and] [t]he trial court also ins

2019This fact, coupled with an erroneous jury instruction and the prosecutor's emphasis on the [uncharged] deadly weapon theory of committing the offense, resulted in the possibility that the jury found Mr. Ortiz guilty based on a theory of the offense that was not charged in the information."); Burson, 102 So. 3d at 717 (holding that the jury instructions constituted fundamental error where the State "presented evidence of both charged and uncharged methods of committing trafficking, and it argued that any of those methods could be used to find Burson guilty . . . [and] [t]he trial court also ins

2019This fact, coupled with an erroneous jury instruction and the prosecutor's emphasis on the [uncharged] deadly weapon theory of committing the offense, resulted in the possibility that the jury found Mr. Ortiz guilty based on a theory of the offense that was not charged in the information."); Burson, 102 So. 3d at 717 (holding that the jury instructions constituted fundamental error where the State "presented evidence of both charged and uncharged methods of committing trafficking, and it argued that any of those methods could be used to find Burson guilty . . . [and] [t]he trial court also ins

2019This fact, coupled with an erroneous jury instruction and the prosecutor's emphasis on the [uncharged] deadly weapon theory of committing the offense, resulted in the possibility that the jury found Mr. Ortiz guilty based on a theory of the offense that was not charged in the information."); Burson, 102 So. 3d at 717 (holding that the jury instructions constituted fundamental error where the State "presented evidence of both charged and uncharged methods of committing trafficking, and it argued that any of those methods could be used to find Burson guilty . . . [and] [t]he trial court also ins

2010DESSAURE’S HABEAS CLAIMS Dessaure also filed a petition for habeas corpus claiming that his appellate counsel was ineffective for (1) failing to raise on direct appeal that the jury instructions constituted fundamental error by improperly instructing the jury on felony murder and other charges not contained in the grand jury indictment; and (2) failing to raise instances of prosecutorial misconduct. “[W]hen evaluating a claim for ineffective assistance of appellate counsel, this Court must determine: (1) whether the alleged omissions are of such magnitude as to constitute a serious error or su

2010DESSAURE’S HABEAS CLAIMS Dessaure also filed a petition for habeas corpus claiming that his appellate counsel was ineffective for (1) failing to raise on direct appeal that the jury instructions constituted fundamental error by improperly instructing the jury on felony murder and other charges not contained in the grand jury indictment; and (2) failing to raise instances of prosecutorial misconduct. “[W]hen evaluating a claim for ineffective assistance of appellate counsel, this Court must determine: (1) whether the alleged omissions are of such magnitude as to constitute a serious error or su

2010See also Hunter v. State, 8 So.3d 1052 (Fla.2008) (holding that under the totality of the circumstances, the use of the “and/ or” conjunction, while erroneous, did not constitute fundamental error).

1989As a general rule, appellate courts have steadfastly applied Florida Rule of Civil Procedure 1.470(b) to bar the appeal of jury instructions to which no objection was raised at the trial level. [1] Middelveen v. Sibson Realty, Inc., 417 So.2d 275, 277 (Fla. 5th DCA 1982), review denied, 424 So.2d 762 (Fla. 1982); Fleitas v. Robinson, 273 So.2d 419 (Fla. 3d DCA 1973).